Procedures. (a) The party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. (b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation. (c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. (d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received. (f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 3 contracts
Sources: Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Limited Brands Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 In case any claim is made, or any suit or action is commenced, against a Party (the “Indemnified Party”) agrees to in respect of which indemnification may be sought by it under this Article XVIII, the Indemnified Party shall promptly give prompt notice to the party against whom indemnity is sought other Party (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section notice thereof and will provide the Indemnifying Party shall have the right to assume control of and defend, in the name of the Indemnified Party, any claim of which it has received such information notice, by giving written notice to the Indemnified Party given not later than twenty (20) days after the delivery of the applicable notice from the Indemnified Party, to assume, at the Indemnifying Party’s expense, the defense thereof, with respect thereto that counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party may reasonably request. The failure to such Indemnified Party of its election so notify to assume the defense thereof, the Indemnifying Party shall not relieve be liable to such Indemnified Party under this Section 18.3 for any attorneys’ fees or other expenses subsequently incurred by such Indemnified Party in connection with the Indemnifying Party of its obligations hereunderdefense thereof, except to the extent such failure set forth in Section 18.3(b).
(b) The Indemnified Party shall have adversely prejudiced the right to employ its own counsel if the Indemnifying Party elects to assume such defense, but the fees and expenses of such counsel shall be at the Indemnified Party’s expense, unless (i) the employment of such counsel at the Indemnifying Party’s expense has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, having elected to assume such defense, thereafter ceases its defense of such action, or (iii) the Indemnified Party has reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party), in any of which events the attorneys’ fees and expenses of counsel to the Indemnified Party shall be borne by the Indemnifying Party.
(bc) The Indemnified Party or Indemnifying Party shall may at any time notify the other of its intention to settle or compromise any claim, suit or action against the Indemnified Party in respect of which payments may be entitled to participate in sought by the defense of any Claim asserted by any third party (“Third Indemnified Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense ofhereunder, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party may settle or compromise any such claim, suit or action solely for the payment of money damages for which the Indemnified Party will be released and fully indemnified hereunder, but shall obtain not agree to any other settlement or compromise without the prior written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld, conditioned or delayed) before entering into withheld (it being agreed that any failure of an Indemnified Party to consent to any settlement of such Third Party Claimor compromise involving relief other than monetary damages shall not be deemed to be unreasonably withheld), if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party may not settle or compromise any such claim, suit or action without the prior written consent of the Indemnifying Party, which consent shall not be entitled unreasonably withheld and the Indemnifying party will have no obligation to participate in pay the defense monetary amount of any such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid settlement or compromise entered into by the Indemnified Party without the Indemnifying Party’s prior written consent.
(d) Each party The Indemnifying Party shall cooperatepromptly notify the Indemnified Party if the Indemnifying Party desires not to assume, and cause their respective Affiliates to cooperate, or participate in the defense of, any third party claim, suit or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithaction.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 3 contracts
Sources: Credit Card Program Agreement (Signet Jewelers LTD), Private Label Credit Card Program Agreement (Signet Jewelers LTD), Credit Card Program Agreement (Signet Jewelers LTD)
Procedures. (a) The party seeking indemnification under Section 12.02 In order for a Purchaser Indemnified Party or a Seller Indemnified Party (the each, an “Indemnified Party”) agrees to give prompt be entitled to any indemnification provided for under this Agreement as a result of a Loss or a claim or demand made by any third Person against the Indemnified Party (a “Third-Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought Seller or the Purchaser, as the case may be, (the “Indemnifying Party”) ), promptly after receipt by such Indemnified Party of written notice of the assertion Third-Party Claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of any claim, or computation of the commencement amount of any suit, action or proceeding such claim (“Claim”if known) in respect of which indemnity may be sought under and such Section and will provide the Indemnifying Party such other information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article XI, except to the extent that the Indemnifying Party is actually prejudiced by such failure.
(b) An Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days after receipt of notice from the Indemnified Party of the commencement of such Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that, if, in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party such 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. If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereundersettle, except to the extent compromise or discharge such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Third-Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which shall not be unreasonably withheldParty, conditioned unless such settlement, compromise or delayed) before entering into any settlement discharge of such Third Third-Party Claim by its terms obligates the Indemnifying Party to pay the full amount of the Liability in connection with such Third-Party Claim, and releases the Indemnified Party completely in connection with such 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, or offer to settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent.
(c) In the event any Indemnified Party should have a claim against an Indemnifying Party hereunder 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 to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the settlement does Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article XI except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party from all liabilities shall reasonably cooperate and obligations 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 shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperatematters, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such recordseach case, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid reasonably required by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 3 contracts
Sources: Share and Asset Purchase Agreement (Alibaba Group Holding LTD), Share and Asset Purchase Agreement (Yahoo Inc), Share and Asset Purchase Agreement (Alibaba Group Holding LTD)
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 hereof (the “Indemnified Party”) agrees to give reasonably prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (each, an “ClaimAction”) in respect of which indemnity may be sought under such Section 11.02 hereof and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The parties hereby acknowledge and agree that the failure by any Indemnified Party to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, indemnification obligation under this Agreement except to the extent that (i) such failure shall have adversely prejudiced results in a failure of actual notice to the Indemnifying PartyParty and (ii) such Indemnifying Party is prejudiced as a result of such failure to give notice.
(b) The Indemnifying Party shall be entitled to participate in the defense of of, investigation of, or corrective action required to be undertaken in response to, any Claim Action asserted by a third party, including any third party Governmental Authority (a “Third Party ClaimAction”) and, subject to the limitations set forth in this SectionSection 11.03 or in Section 11.04 hereof, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control own expense subject to the defense of“basket” and “cap”, and appoint the lead counsel if applicable, as described in connection with, the Retained LitigationSection 11.02 hereof.
(c) If the Indemnifying Party shall assume the control and cost of the defense of any Third Party Claim Action in accordance with the provisions of this Section 12.0311.03 or of Section 11.04 hereof, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (Party, which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, Action if the settlement does not provide for the unconditional written release of the Indemnified Party from any and all liabilities and obligations with respect to such Third Party Claim Action or if the settlement imposes injunctive or any form of relief other equitable relief than monetary against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim Action and to employ separate legal counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party, subject to the “basket” and “cap”, if applicable, as described in Section 11.02 hereof. In the event that the Indemnified Party shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the Indemnifying Party might be expected to affect adversely the ability of the Indemnifying Party to conduct its business, or that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such claim or any litigation relating thereto, the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party subject to the “basket” and “cap”, if applicable, as described in Section 11.02 hereof, provided that if the Indemnified Party does so take over and assume control, the Indemnified Party shall not settle such claim or litigation without the written consent of the Indemnifying Party, such consent not to be unreasonably withheld.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim Action, including any counterclaims filed by Seller, Parent or Buyer, and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. This cooperation shall be provided without cost or expense of the other party other than reimbursement of out-of-pocket travel or similar expenses subject to Section 11.02 hereof.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02 hereof.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Golf Trust of America Inc), Asset Purchase Agreement (Golf Trust of America Inc), Asset Purchase Agreement (Gta-Ib, LLC)
Procedures. The obligations and liabilities of the parties with respect to Claims subject to indemnification under this Section 11, (“Indemnified Claims”), will be subject to the following terms and conditions:
11.3.1 The party claiming a right to indemnification hereunder (“Indemnified Person”) will give prompt written notice to the indemnifying party (“Indemnifying Person”) of any Indemnified Claim, stating its nature, basis and amount, to the extent known. Each such notice will be accompanied by copies of all relevant documentation, including any summons, complaint or other pleading that may have been served or any written demand or other document.
11.3.2 With respect to any Indemnified Claim: (a) The party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that Person will defend or settle the Indemnified Claim, subject to provisions of this subsection, (b) the Indemnified Person will, at the Indemnifying Party may reasonably request. The failure Person’s sole cost and expense, cooperate in the defense by providing access to so notify witnesses and evidence available to it, (c) the Indemnifying Party shall not relieve Indemnified Person will have the Indemnifying Party of right to participate in any defense at its obligations hereunder, except own cost and expense to the extent such failure shall have adversely that, in its judgment, the Indemnified Person may otherwise be prejudiced thereby, (d) the Indemnified Person will not settle, offer to settle or admit liability in any Indemnified Claim without the written consent of an officer of the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense ofPerson, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (ie) the Indemnifying Party shall obtain Person will not settle, offer to settle or admit liability as to any Indemnified Claim in which it controls the prior defense if such settlement, offer or admission contains any admission of fault or guilt on the part of the Indemnified Person, or would impose any liability or other restriction or encumbrance on the Indemnified Person, without the written consent of an officer of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified PartyPerson.
(d) 11.3.3 Each party shall cooperatewill cooperate with, and cause their respective Affiliates comply with all reasonable requests of, each other party and act in a reasonable and good faith manner to cooperate, in minimize the defense or prosecution scope of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithIndemnified Claim.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Commercial Outsourcing Services Agreement (Amag Pharmaceuticals Inc.), Commercial Outsourcing Services Agreement (Amag Pharmaceuticals Inc.)
Procedures. (a) The party a Any Person seeking indemnification under Section 12.02 6.2 (the “"Indemnified Party”") agrees to give prompt written notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim that does not involve a Third Party Claim, which notice shall describe in reasonable detail the nature of the claim, or an estimate of the commencement amount of damages attributable to such claim to the extent feasible and the basis of the Indemnified Party's request for indemnification under this Agreement. If the Indemnifying Party disputes such claim and such dispute is not resolved by the parties, such dispute shall be resolved in accordance with Section 7.9.
(b If an Indemnified Party is notified of a Third Party Claim which may give rise to a claim for indemnification against any Indemnifying Party under this Section, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing (including copies of all papers served with respect to such Third Party Claim), which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible and the basis of the Indemnified Party's request for indemnification under this Agreement; provided that any failure to timely give such notice shall not relieve the Indemnifying Party of any suitof its obligations under this Section 6 except to the extent that such failure prejudices or impairs, in any material respect, any of the rights or obligations of the Indemnifying Party. (c Any Indemnifying Party may, and at the request of the Indemnified Party shall, participate in and control the defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the person or entity asserting the Third Party Claim or any cross-complaint against any person or entity, in each case only if and to the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement of any claim, litigation or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto hereunder, provided that the Indemnifying Party may reasonably request. The failure to so notify will give the Indemnifying Indemnified Party shall reasonable prior written notice of any such proposed settlement or compromise and will not relieve the Indemnifying Party of its obligations hereunder, except consent to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense entry of any Claim asserted by judgment or enter into any third party (“Third Party Claim”) and, subject settlement with respect to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (Party, which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third . The Indemnifying Party Claim, (if the settlement does not release the Indemnified Party from all liabilities and obligations is entitled to indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partycooperation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset Contribution Agreement (Lyondell Petrochemical Co), Asset Contribution Agreement (Equistar Funding Corp)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking Any Buyer Indemnitee or Seller Indemnitee claiming indemnification under Section 12.02 this Agreement (the an “Indemnified Party”) agrees with respect to give prompt notice any claim asserted against the Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification hereunder shall (i) notify the party against whom indemnity is sought other Party (the “Indemnifying Party”) of the assertion Third Party Claim within thirty (30) days of the date on which the Indemnified Party knows or should have known of the Third Party Claim, and (ii) transmit to the Indemnifying Party a written notice (a “Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount of the Damages estimated to arise therefrom. Subject to Section 10.01, failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party is materially prejudiced by such delay or omission.
(b) The Indemnifying Party shall have the right to defend any such Third Party Claim, upon notice to the Indemnified Party within fifteen (15) days of receipt of a Claim Notice in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any claimThird Party Claim for equitable or injunctive relief or any claim that would impose criminal liability. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period or in accordance with the first sentence of this Section 9.03(b), or the commencement Indemnified Party shall have the right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any suitThird Party Claim, action the Indemnified Party shall, at the Indemnifying Party’s expense (but only if the Indemnified Party is actually entitled to indemnification hereunder), cooperate with the Indemnifying Party in such defense and, at no cost to the Indemnifying Party, make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or proceeding under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless, in the case of the Indemnifying Party being Seller or its Affiliates, such settlement agreement also covers in all material respects at least a part of the Retained Business that is subject to the same Third Party Claim and the Business is treated in a substantially similar manner as the Retained Business (other than exceptions related to the size of the Business relative to the Retained Business) in such settlement agreement. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.03(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party is not defending the Indemnified Party pursuant to Section 10.03(b), then the Indemnified Party shall defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.03(c), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(d) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Damage or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party within 30 days of the date on which indemnity may be sought under such Section the Indemnified Party knows of the Direct Claim, and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party of its obligations hereunder, except from any other obligation or liability that it may have to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Indemnified Party shall be entitled or otherwise than pursuant to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) Article X. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall assume the control be conclusively deemed a liability of the defense of any Third Indemnifying Party Claim in accordance with the provisions of this Section 12.03, (i) hereunder and the Indemnifying Party shall obtain pay the prior written consent amount of such liability to the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third on demand. If the Indemnifying Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect agrees that it has an indemnification obligation but asserts that it is obligated to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid pay a lesser amount than that claimed by the Indemnified Party.
(d) Each party , the Indemnifying Party shall cooperatepay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference. Buyer and cause their respective Affiliates Seller hereby covenant and agree that, to cooperatethe extent there is a disagreement with respect to a Direct Claim, they shall endeavor to negotiate in the defense or prosecution good faith to arrive at a resolution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdisagreement.
(e) Each Indemnified Party must mitigate Notwithstanding anything to the contrary contained herein, Seller shall have the sole and absolute right to defend and control the defense of each of the matters set forth on Schedule 4.10, and such right to defend and control shall not be subject to the requirements or limitations otherwise set forth in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement Section 10.03 in respect of that loss, the Indemnified Third Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaims.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.), Asset and Equity Purchase Agreement (Del Frisco's Restaurant Group, Inc.)
Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 6 (the “"Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The 's ability to defend such action and provided further that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Registration Rights Agreement (Mercexchange LLC), Exchange Agreement (Aden Enterprises Inc)
Procedures. (a) The party seeking Any Person desiring indemnification under Section 12.02 this Article VII and entitled thereto (the an “Indemnified Party”) agrees to shall, promptly upon becoming aware thereof, give prompt written notice thereof to the party against whom indemnity is sought Party obligated to indemnify such Indemnified Party (such notified Party, the “Indemnifying Responsible Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto ); provided that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Responsible Party of its obligations hereunder, except to the extent that the Responsible Party is actually prejudiced thereby. Such notice by such failure Indemnified Party shall have adversely prejudiced state the Indemnifying Partyamount of the claim, if known, and the method of computation thereof, the nature of such claim and a reference to the provision of this Agreement upon which such claim is based, all with reasonable particularity.
(b) The Indemnifying If a claim, action, suit or Proceeding by a Person other than a Party shall be entitled to participate in the defense of any Claim asserted by any third party hereto (a “Third Third-Party Claim”) andis made against any Indemnified Party, subject and if such Indemnified Party intends to seek indemnification with respect thereto under this Article VII, such Indemnified Party shall promptly notify the limitations set forth in this Section, shall be entitled to control the defense Responsible Party of such Third Party Claim and appoint lead counsel for such defense, in each case at its expenseclaims; provided that Limited Brands or the failure to so notify shall not relieve the Responsible Party of its Affiliates shall control obligations hereunder, except to the defense of, and appoint extent that the lead counsel in connection with, the Retained LitigationResponsible Party is actually prejudiced thereby.
(c) With respect to any Third-Party Claim, the Responsible Party shall have thirty (30) days after receipt of such notice (or such shorter period as an answer or response is required in any Proceeding) to assume the conduct and control, at the expense of the Responsible Party, of the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party and the fees and expenses of such counsel shall be borne by the Indemnified Party. Notwithstanding the foregoing, the Responsible Party shall not be entitled to assume control of the defense as to any matter, and if subject to indemnification under this Article VII, shall pay the reasonable fees and expenses of counsel selected and retained by the Indemnified Party, in connection with: (i) any Third-Party Claim seeking specific performance or other equitable remedies, (ii) any Third-Party Claim in which a conflict of interest exists between the Responsible Party and the Indemnified Party, or (iii) any Third-Party Claim with respect to which the Indemnified Party determines in good faith that the Losses relating to such claim are likely to exceed the maximum amount that the Indemnified Party would then be entitled and able (after taking into account the financial resources of the Responsible Party) to recover under the applicable provisions of this Article VII (collectively, the “Litigation Control Conditions”). If the Indemnifying Indemnified Party shall assume assumes the control of the defense of any Third such Third-Party Claim in accordance with because the provisions Third-Party Claim meets one or more of this Section 12.03the Litigation Control Conditions, (i) the Indemnifying Indemnified Party shall obtain have the right to assume control of the defense of the Third-Party Claim but shall not thereby waive any right to indemnification therefor pursuant to this Agreement; provided, however, that the Indemnified Party shall not consent to an entry of judgment or settle such Third-Party Claim without the prior written consent of the Indemnified Party (Responsible Party, which shall not be unreasonably withheld. The Responsible Party shall, conditioned if it agrees and is reasonably expected to be able to pay the full amount thereof, be permitted independently to consent to an entry of judgment or delayed) before entering into settle any settlement of such Third Third-Party Claim, if provided that (i) the Responsible Party pays in full all monetary amounts due under the settlement, (ii) the settlement does not release impose any non-monetary relief or future obligation on the Indemnified Party from all liabilities Party, and obligations with respect to such Third Party Claim or (iii) the settlement imposes injunctive does not contain any findings of fact or other equitable relief against an admission of liability of guilt on the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense part of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party Any Indemnified Party shall cooperate, cooperate in all reasonable respects with the Responsible Party and cause their respective Affiliates to cooperate, its attorneys in the investigation, trial and defense or prosecution of any Third Third-Party Claim and any appeal arising therefrom and, at the expense of the Responsible Party, shall furnish or cause to be furnished such books, records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, and appeals as may be reasonably requested in connection therewith.
(e) Each Indemnified . Such cooperation shall include access during normal business hours afforded to the Responsible Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates and its loss after the Indemnifying Party has paid agents and representatives to, and reasonable retention by the Indemnified Party under any indemnification provision of this Agreement in respect of that lossof, books, records and information which have been identified by the Indemnified Responsible Party must notify the Indemnifying as being reasonably relevant to such Third-Party Claim, and pay making employees available on a mutually convenient basis to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount provide additional information and explanation of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedmaterial provided hereunder.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Rhino Resource Partners LP)
Procedures. The Adimab Indemnitees or Mersana Indemnitees, as the case may be, will (a) The party seeking indemnification under Section 12.02 (provide the “Indemnified Party”) agrees to give indemnifying Party with prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Third Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure Claim giving rise to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations an indemnification obligation hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying permit the indemnifying Party shall be entitled to participate assume full responsibility to investigate, prepare for and defend against any such Third Party Claim, (c) provide reasonable assistance in the defense of such claim at the indemnifying Party’s reasonable expense, and (d) not compromise or settling such Third Party Claim without the indemnifying Party’s advance written consent; provided, however, that no delay on the part of the indemnified Party in notifying the indemnifying Party shall relieve the indemnifying Party from any Claim asserted by any third party obligation hereunder unless (“and then only to the extent that) the indemnifying Party is actually prejudiced thereby. Notwithstanding the foregoing, if the indemnifying Party does assume control of the defense of the Third Party Claim”) and, subject the indemnifying Party will not agree to the limitations set forth in this Section, shall be entitled to control the defense any settlement of such Third Party Claim or consent to any judgment in respect thereof that does not include a complete and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control unconditional release of the defense of indemnified Party from all liability with respect thereto or that imposes any Third liability or obligation on the indemnified Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which shall indemnified Party. If the Parties cannot be unreasonably withheldagree as to the application of the foregoing Sections 10.1 and 10.2, conditioned or delayed) before entering into any settlement each may conduct separate defenses of such the Third Party Claim, if and each Party reserves the settlement does not release right to claim indemnity from the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after ARTICLE 10 upon the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent resolution of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified underlying Third Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaim.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Collaboration Agreement (Mersana Therapeutics, Inc.), Collaboration Agreement (Mersana Therapeutics, Inc.)
Procedures. (a) The A party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third-Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the assertion of any claimThird-Party Claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request, to the extent such information is reasonably available. The failure to so notify deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third-Party Claim that is exclusively for civil monetary damages at Law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the defense of any Third-Party Claim that (i) seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief, (ii) relates to or arises in connection with any criminal action, indictment, allegation or investigation, (iii) presents, under applicable standards of professional conduct, a conflict on any significant issue between the Indemnified Party and the Indemnifying Party of its obligations hereunderor (iv) involves a material customer, except to supplier or distributor, and the extent such failure Indemnified Party shall have adversely prejudiced the right to defend, at the expense of the Indemnifying Party.
(b) , any such Third-Party Claim. The Indemnifying Party shall be entitled 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. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), then the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third-Party Claim, then the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of any Claim asserted such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by any third party the Indemnifying Party or (“Third Party Claim”ii) and, subject the named parties to the limitations set forth in this Section, shall be entitled to control the defense of such Third Third-Party Claim (including any impleaded parties) include both the Indemnified Party and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense ofIndemnifying Party, and appoint the lead Indemnified Party reasonably determines that representation by counsel in connection with, to the Retained Litigation.
(c) Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party shall assume the control of assumes the defense of any Third Third-Party Claim in accordance Claim, then the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the provisions Indemnifying Party in such defense and make available to the Indemnifying 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. If the Indemnifying Party assumes the defense of this Section 12.03any Third-Party Claim, (i) then the Indemnifying Party shall obtain not, without the prior written consent of the Indemnified Party (which shall not be unreasonably withheldParty, conditioned or delayed) before entering enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Third-Party ClaimClaim if such settlement, if the settlement compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liabilities and obligations with liability in respect to of such Third Third-Party Claim or the settlement (iii) imposes injunctive equitable remedies or other equitable relief against any obligation on the Indemnified Party and (ii) other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request, to the extent such information is reasonably available. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party.
(e) The Indemnifying Party shall not be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall require that any action be paid made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(df) Each party shall cooperateNotwithstanding the provisions of Section 9.9, and cause their respective Affiliates each Indemnifying Party hereby consents to cooperate, in the defense or prosecution nonexclusive jurisdiction of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested court in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement an Action in respect of that loss, the a Third-Party Claim is brought against any Indemnified Party must notify for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party and pay with respect to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedclaim anywhere.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Procedures. (a) The party seeking Any indemnification of GWI, GWI Affiliates, ---------- Supplier or Supplier Affiliates hereunder shall include and extend to the benefit of their respective shareholders, directors, officers and employees. Any person that may be entitled to indemnification under Section 12.02 this Agreement (the “an "Indemnified Party”") agrees to shall give prompt written notice to the party against whom indemnity is sought Person obligated to indemnify it (the “an "Indemnifying Party”") of the assertion with reasonable promptness upon becoming aware of any claim, claim or other facts upon which a claim for indemnification will be based; the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party notice shall set forth such information with respect thereto that as is then reasonably available to the Indemnified Party. The Indemnifying Party shall have the right to undertake the defense of any such claim asserted by a third party with counsel reasonably satisfactory to the Indemnified Party and the Indemnified Party shall 126 cooperate in such defense and make available all records, materials and witnesses reasonably requested by the Indemnifying Party may in connection therewith at the Indemnifying Party's expense. If the Indemnifying Party shall have assumed the defense of the claim with counsel reasonably request. The failure satisfactory to so notify the Indemnified Party, the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except be liable to the extent such failure shall have adversely prejudiced Indemnified Party for any legal or other expenses (other than for reasonable costs of investigation) subsequently incurred by the Indemnifying Party.
(b) Indemnified Party in connection with the defense thereof. The Indemnifying Party shall not be entitled to participate in the defense of liable for any Claim asserted by any third party (“Third Party Claim”) andclaim settled without its consent, subject to the limitations set forth in this Section, which consent shall not be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands unreasonably withheld or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the delayed. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheldprior to ceasing to defend, conditioned settling or delayed) before entering into otherwise disposing of any settlement of such Third Party Claim, claim if the settlement does not release as a result thereof the Indemnified Party from all liabilities and obligations with respect would become subject to such Third Party Claim or the settlement imposes injunctive or other equitable relief against or if the Indemnified Party and (ii) the Indemnified Party shall be entitled may reasonably object to participate in the defense such disposition of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by claim based on a continuing adverse effect on the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Supply Agreement (Catalytica Inc), Supply Agreement (Catalytica Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 9.02 (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to give prompt notice written notice, but no later than 5 days after receipt thereof, to the party against whom indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”"CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of of, investigation of, or corrective action required to be undertaken in response to, any Claim asserted by a third party, including any third party Governmental Authority (“Third Party Claim”"THIRD PARTY CLAIM") and, subject to the limitations set forth in this SectionSection or Section 9.04, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control expense subject to the defense of, deductible and appoint the lead counsel maximum liability described in connection with, the Retained LitigationSection 9.02.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03or Section 9.04, (i) 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 of such Third Party Claim, Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim (including any counterclaims filed by Seller) and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. This cooperation shall be provided without cost or expense of the other party other than reimbursement of out-of-pocket travel or similar expenses subject to the provisions of Section 9.02.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.029.02. In addition, each party agrees that it will not, and agrees to use its best efforts to ensure that its Affiliates do not, voluntarily or by discretionary action, accelerate the timing, or increase the cost, of any obligations of the other party under this Article 9.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Megapro Tools Inc), Stock Purchase Agreement (Us Industries Inc /De)
Procedures. (a) The party seeking indemnification under Section 12.02 8.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that such Indemnifying Party is actually and materially prejudiced by such failure shall have adversely prejudiced the Indemnifying Partyto provide timely notice.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Indemnified Party shall obtain the prior written consent of the Indemnified Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such any Claim asserted by any third party (“Third Party Claim, if the settlement does not release ”) for which the Indemnified Party will seek indemnification from all liabilities and obligations with respect to such Third the Indemnifying Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyhereunder.
(dc) Each party Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(fd) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.028.02.
Appears in 2 contracts
Sources: Merger Agreement (Shutterstock, Inc.), Merger Agreement (Shutterstock, Inc.)
Procedures. (a) The party An Indemnified Party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to Sections 9.1 or 9.2 shall give prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) Party of the assertion of any claim that does not involve an Action or Proceeding brought by a third party (a “Third Party Proceeding”). The notice shall describe in reasonable detail the nature of the claim, contain an estimate of the amount of Losses attributable to the claim to the extent feasible and state the basis of the request for indemnification under this Agreement.
(b) If an Indemnified Party receives notice of a Third Party Proceeding for which the Indemnified Party intends to assert an indemnification claim under Sections 9.1 or 9.2 against the commencement Indemnifying Party, then the Indemnified Party shall give notice of any suit, action or such proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide to the Indemnifying Party within ten (10) days after receipt of written notice thereof from such information with respect thereto third party, or sooner, to the extent a reply is required before that under the Third Party Proceeding, in which case, the Indemnified Party shall give notice of such proceeding to the Indemnifying Party within the initial one third (1/3) of the term available under the applicable rules to respond to such Third Party Proceeding. Upon acknowledgement of the Indemnifying Party’s obligation to indemnify an Indemnified Party hereunder, the Indemnifying Party may reasonably requestassume the defense of any such Third Party Proceeding by notice to the Indemnified Party no later than five (5) Business Days prior to the date by which an answer or other response to the Third Party Proceeding is required to be made. The Any failure by either party to so notify give the Indemnifying Party shall requisite notice within the time specified in this Section 9.3(b) will not relieve the Indemnifying Party of its obligations hereunder, the obligation to indemnify the Indemnified Party or the obligation of the Indemnified Party to allow the Indemnifying Party to defend pursuant to this Section 9.3(b) except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in that the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to Proceeding is materially prejudiced by the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigationdelay.
(c) If the Indemnifying Party shall assumes the defense of a Third Party Proceeding pursuant to Section 9.3(b), then the Indemnifying Party may defend and conduct any proceedings or negotiations in connection with the Third Party Proceeding, take all other required steps or proceedings to settle or defend any Third Party Proceeding, and employ counsel of its choice to contest such Third Party Proceeding in the name of the Indemnified Party or otherwise.
(d) If the Indemnifying Party does not assume the control defense of (having been given a proper opportunity to do so), or if after so assuming the Indemnifying Party fails to defend, any Third Party Proceeding, then the Indemnified Party may defend against such Third Party Proceeding in a manner reasonably appropriate and the Indemnified Party may settle such Third Party Proceeding on such terms as are reasonable in the circumstances and the costs and expense of such defense shall be Losses subject to indemnification; provided, however, that in no event shall the Indemnifying Party settle, or agree to any other resolution of, any Third Party Proceeding without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditions or delayed, if such settlement or other resolution is binding on the Indemnified Party.
(e) The Indemnified Party shall have the right to participate in the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 Proceeding related to any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in indemnified Losses where the defense of such Third Party Claim has been and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause continues to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid assumed by the Indemnifying Party) to the Indemnified Party of that mitigation (less , at the Indemnified Party’s reasonable sole cost and expense and the costs and expenses of mitigation) within two Business Days after the benefit is receivedthat participation shall not be Losses subject to indemnification.
(f) Each Indemnified Party Notwithstanding anything to the contrary contained in this Agreement, the procedures for all Tax Proceedings shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under governed exclusively by Section 12.027.2(h) (and not this Section 9.3).
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 this Article 10 (the “Indemnified Party”) agrees to give prompt notice in writing to the party against whom indemnity is to be sought (the “Indemnifying Party”) of the assertion of any claim, claim or the commencement of any suit, action or proceeding by any third party (a “Third-Party Claim”) in respect of which indemnity may be sought under such Section section. Such notice shall set forth in reasonable detail the facts and will provide circumstances of such Third-Party Claim and the Indemnifying Party such basis for indemnification in respect thereof (taking into account the information with respect thereto that then available to the Indemnifying Party may reasonably requestIndemnified Party). The failure of the Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely has prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) andshall, subject to the limitations set forth in this SectionSection 10.03, shall be entitled have the right, upon written notice to control the Indemnified Party, to assume the defense of any Third-Party Claim at the expense of the Indemnifying Party, with counsel selected by the Indemnifying Party. If the Indemnifying Party does not so elect to assume the defense of such Third Third-Party Claim and appoint lead counsel for such defenseClaim, in each case at its expense; provided that Limited Brands or its Affiliates the Indemnified Party shall control have the sole right to assume the defense of, and appoint of such Third-Party Claim. If the lead counsel in connection withIndemnifying Party assumes the defense of such Third-Party Claim, the Retained LitigationIndemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party and shall not constitute indemnifiable Damages hereunder unless (i) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, or (ii) in the reasonable judgment of the Indemnified Party’s counsel, the representation of both the Indemnifying Party and such Indemnified Party by the same counsel would present such counsel with a conflict of interest under applicable standards of professional conduct.
(c) If the Indemnifying Party shall assume assumes the control of the defense of any Third Third-Party Claim in accordance with the provisions of this Section 12.0310.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned) before entering into any settlement of such Third Third-Party Claim, if the settlement (A) does not release the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such Third Third-Party Claim or the settlement Claim, (B) imposes injunctive or other injunctive, equitable relief against or any obligation on the Indemnified Party and (ii) or any of its Affiliates other than solely the payment of money damages for which the Indemnified Party shall will be entitled to participate in the defense fully indemnified hereunder, (C) involves a finding or admission of such Third Party Claim and to employ separate counsel wrongdoing or violation of its choice for such purpose. The fees and expenses of such separate counsel shall be paid Applicable Law by the Indemnified Party, (D) encumbers the assets of the Indemnified Party or imposes any restriction or condition that would apply to or adversely affect the Indemnified Party or (E) reasonably could be expected to have a material adverse effect on the Taxes of Parent, the Surviving Corporation or their respective Affiliates for a taxable period or portion thereof beginning after the Closing Date. The Indemnified Party shall not settle any Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned).
(d) Each party shall cooperate, and cause their respective its Affiliates to cooperate, in the defense or prosecution of any Third Third-Party Claim Claim, and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each In the event an Indemnified Party must mitigate in accordance with applicable Law any loss has a claim for which such Indemnified Party seeks indemnification indemnity under this Agreement. If such Indemnified Party mitigates its loss after Article 10 against the Indemnifying Party has paid the Indemnified that does not involve a Third-Party under any indemnification provision of this Agreement in respect of that lossClaim (a “Direct Claim”), the Indemnified Party must agrees to give prompt notice thereof in writing to the Indemnifying Party. Such notice shall set forth in reasonable detail the facts and circumstances of such Direct Claim and the basis for indemnification in respect thereof (taking into account the information then available to the Indemnified Party). The failure of the Indemnified Party to so notify the Indemnifying Party and pay to shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by failure shall have prejudiced the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party To the extent anything in this Section 10.03 is inconsistent with Section 8.01(e), the provisions of Section 8.01(e) shall use reasonable efforts govern with respect to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02Tax Contest.
Appears in 2 contracts
Sources: Merger Agreement (Actua Corp), Merger Agreement (Envestnet, Inc.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking If any Person entitled to seek indemnification under Section 12.02 10.2 or Section 10.3 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a Third Party (“Third Party Claim”) in respect of any matter that is subject to give prompt notice to indemnification under Section 10.2 or Section 10.3 the party Indemnified Party shall promptly (i) notify the Party against whom indemnity indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding Third Party Claim and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Damages attributable to the Third Party may reasonably requestClaim, if known, and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify the Indemnifying Party timely provide such Claim Notice shall not relieve affect the Indemnifying Party right of its obligations the Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced (and then only to the extent) the Indemnifying PartyParty is prejudiced by such failure.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such defend a Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 10.5(b). The Indemnifying Party shall have full control of such defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party shall be required with respect to any such compromise or settlement if (which shall not A) the Indemnified Party or any of its Affiliates would be unreasonably withheld, conditioned or delayed) before entering into required to pay any settlement monetary damages as a result of such Third compromise or settlement, (B) such compromise or settlement requires any admission of guilt or wrongdoing on the part of the Indemnified Party Claimor contains any sanction, if restriction or relief that would adversely affect the conduct of any business of the Indemnified Party or its Affiliates in any material respect or (C) such compromise or settlement does not fully and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or Claim. If requested by the settlement imposes injunctive or other equitable relief against Indemnifying Party, the Indemnified Party agrees, at the sole cost and (ii) expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.5(b), and the Indemnified Party shall be entitled bear its own costs and expenses with respect to participate in such participation; provided that notwithstanding the defense of such Third foregoing, the Indemnifying Party Claim and to employ separate counsel of its choice for such purpose. The fees shall pay the reasonable costs and expenses of such separate defense (including reasonable attorneys’ fees and expenses) of the Indemnified Party if (x) the Indemnified Party’s outside counsel shall be paid by have reasonably concluded and advised in writing (with a copy to the Indemnifying Party) that there are defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party or (y) the Indemnified Party’s outside counsel shall have advised in writing (with a copy to the Indemnifying Party) that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnifying Party and the Indemnified Party.
(dc) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution Any claim by an Indemnified Party on account of any Damages that does not result from a Third Party Claim (a “Direct Claim”) must be asserted by giving the Indemnifying Party written notice thereof prior to the expiration of the applicable survival period set forth in Section 10.1. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, include copies of all available material written evidence thereof and shall furnish indicate the estimated amount, if reasonably practicable, of Damages that have been or cause may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such twenty (20) Business Day period, the Indemnifying Party will be furnished deemed to have rejected such recordsclaim, information and testimony, and attend in which event the Indemnified Party will be free to pursue such conferences, discovery proceedings, hearings, trials or appeals, remedies as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) available to the Indemnified Party on the terms and subject to the provisions of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedthis Agreement.
(fd) Each Any indemnification payment made pursuant to this Agreement shall be net of any insurance proceeds realized by and paid to the Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02in respect of such claim.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Sunoco Logistics Partners L.P.), Membership Interest Purchase Agreement (Enbridge Energy Partners Lp)
Procedures. (a) The Each party seeking entitled to indemnification under Section 12.02 this Agreement (the “each, an "Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of Claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto Claim; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such Claim, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party may reasonably request. The failure to so notify and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced under this Agreement unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate , in the investigation or defense of any such Claim asserted by any third party (“Third Party Claim”) andshall, subject except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement or compromise which does not include an unconditional release of the Indemnified Party from all liabilities and obligations with liability in respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purposeClaim. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, furnish such information regarding itself or from any other Person alleged to the Claim in question as an Indemnifying Party may reasonably request in writing and as shall be responsible, for any Damages payable under Section 12.02reasonably required in connection with the investigation and defense of such Claim.
Appears in 2 contracts
Sources: Subscription Agreement (Dennys Corp), Subscription Agreement (Mellon HBV Alternative Strategies LLC)
Procedures. (a) The A party seeking indemnification under Section 12.02 pursuant to Sections 7.2 or 7.3 (the an “Indemnified Party”) agrees to shall give prompt notice to the party against from whom indemnity such indemnification is sought (the “Indemnifying Party”) of the assertion of any claimclaim or assessment, or the commencement of any action, suit, action audit or proceeding (“Claim”) proceeding, by a third party in respect of which indemnity may be sought under such Section hereunder (a “Third Party Claim”) and will provide give the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request. The , but no failure to so notify the Indemnifying Party give such notice shall not relieve the Indemnifying Party of its obligations hereunder, any liability hereunder (except to the extent such failure the Indemnifying Party has suffered actual prejudice thereby). Notice may be given to any Frost Group Shareholder by giving notice to the Representative (defined below). The Indemnifying Party shall have adversely prejudiced the right, exercisable by written notice (the “Notice”) to the Indemnified Party within fifteen (15) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. If the Indemnifying Party shall fail to assume the defense of the Third Party Claim within such fifteen (15) day period, the Indemnified Party shall have the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. If the Indemnifying Party elects to assume the defense of any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge such Third Party Claim without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld. In the event that the Indemnifying Party does not elect to assume the defense of any such Third Party Claim, the Indemnified Party may do any of the foregoing and/or defend such Third Party Claim, all at the expense and on the account of the Indemnifying Party.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall be entitled in any event have the right to participate participate, at its own expense, in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control which the defense of, and appoint the lead counsel in connection with, the Retained Litigationother is defending.
(c) If the The Indemnifying Party Party, if it shall assume the control of have assumed the defense of any Third Party Claim in accordance with the provisions terms hereof, shall have the right, upon fifteen (15) business days prior written notice to the Indemnified Party, to consent to the entry of this Section 12.03judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or settlement, unless (i) the Indemnifying Third Party shall obtain Claim involves equitable or other non-monetary damages or (ii) in the prior written consent reasonable judgment of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any such settlement of such Third Party Claim, if the settlement does not release would have a continuing material adverse effect on the Indemnified Party from all liabilities and obligations Party, in which case such settlement only may be made with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense written consent of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate, and cause their respective Affiliates to cooperate, cooperate in the defense or prosecution of any Third Party Claim thereof and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, and appeals as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay Such cooperation shall include access during normal business hours afforded to the Indemnifying Party the extent of the value of the benefit (orrecords and information which are reasonably relevant to such Third Party Claim, if less, the amount and making employees available on a mutually convenient basis to provide additional information and explanation of any such loss previously paid by material provided hereunder, and the Indemnifying Party) to Party shall reimburse the Indemnified Party of that mitigation (less the Indemnified Party’s for all its reasonable costs of mitigation) within two Business Days after the benefit is receivedout-of-pocket expenses in connection therewith.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pharmaceutical Financial Syndicate, LLC), Stock Purchase Agreement (Winston Pharmaceuticals, Inc.)
Procedures. (a) The Each party seeking entitled to indemnification under Section 12.02 this Agreement (the “"Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of Claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto Claim; provided that counsel for the Indemnifying Party, who shall conduct the defense of such Claim, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party may reasonably request. The failure to so notify and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, under this Agreement except to the extent such failure shall have adversely prejudiced that the Indemnifying Party is prejudiced thereby. No Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate , in the investigation or defense of any such Claim asserted by any third party (“Third Party Claim”) andshall, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance except with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the each Indemnified Party (which consent shall not be unreasonably withheld, conditioned withheld or delayed) before entering ), consent to entry of any judgment or enter into any settlement of such Third Party Claim, if the settlement or compromise which does not include an unconditional release of the Indemnified Indemnifying Party from all liabilities and obligations with liability in respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purposeClaim. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, furnish such information regarding itself or from any other Person alleged to the Claim in question as an Indemnifying Party may reasonably request in writing and as shall be responsible, for any Damages payable under Section 12.02reasonably required in connection with the investigation and defense of such Claim.
Appears in 2 contracts
Sources: Registration Rights Agreement (Spectrx Inc), Registration Rights Agreement (Spectrx Inc)
Procedures. (a) The party Any Person seeking indemnification under Section 12.02 6.2 (the “"Indemnified Party”") agrees to give prompt written notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim that does not involve a Third Party Claim, which notice shall describe in reasonable detail the nature of the claim, or an estimate of the commencement amount of damages attributable to such claim to the extent feasible and the basis of the Indemnified Party's request for indemnification under this Agreement. If the Indemnifying Party disputes such claim and such dispute is not resolved by the parties, such dispute shall be resolved in accordance with Section 7.9.
(b) If an Indemnified Party is notified of a Third Party Claim which may give rise to a claim for indemnification against any Indemnifying Party under this Section, then the Indemnified Party shall promptly notify each Indemnifying Party thereof in writing (including copies of all papers served with respect to such Third Party Claim), which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible and the basis of the Indemnified Party's request for indemnification under this Agreement; provided that any failure to timely give such notice shall not relieve the Indemnifying Party of any suitof its obligations under this Section 6 except to the extent that such failure prejudices or impairs, in any material respect, any of the rights or obligations of the Indemnifying Party.
(c) Any Indemnifying Party may, and at the request of the Indemnified Party shall, participate in and control the defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the person or entity asserting the Third Party Claim or any cross-complaint against any person or entity, in each case only if and to the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement of any claim, litigation or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto hereunder, provided that the Indemnifying Party may reasonably requestwill give the Indemnified Party reasonable prior written notice of any such proposed settlement or compromise and will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. The failure Indemnifying Party (if the Indemnified Party is entitled to so notify indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such cooperation.
(d) If the Indemnifying Party fails to assume the defense of a Third Party Claim within a reasonable period after receipt of written notice pursuant to the first sentence of subparagraph (c), or if the Indemnifying Party assumes the defense of the Indemnified Party pursuant to subparagraph (c) but fails diligently to prosecute or settle the Third Party Claim, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings; provided that the Indemnified Party shall not settle such Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section, and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(e) Notwithstanding the other provisions of this Section 6.3, if the Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 6.3 and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not relieve be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 6.3 or of the Indemnifying Party's participation therein at the Indemnified Party's request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of the litigation concerning such dispute. If a dispute over potential liability is resolved in favor of the Indemnified Party, the Indemnifying Party shall reimburse the Indemnified Party in full for all costs of the litigation concerning such dispute.
(f) After it has been determined, by acknowledgment, agreement, or ruling of court of law, that an Indemnifying Party is liable to the Indemnified Party under this Section 6, the Indemnifying Party shall pay or cause to be paid to the Indemnified Party the amount of the Liability within ten business days of receipt by the Indemnifying Party of its obligations hereunder, except a notice reasonably itemizing the amount of the Liability but only to the extent such failure shall have adversely prejudiced actually paid or suffered by the Indemnifying Indemnified Party.
(bg) The Indemnifying In the event a Third Party Claim is brought in which the liability as between the Partnership and the Contributor is alleged to be joint (it being agreed that any Third Party Claim related to a Pre-Closing Contingent Liability shall be entitled deemed joint) or in which the entitlement to participate indemnification under this Section 6 has not been determined, the Partnership and the Contributor shall cooperate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the joint defense of such Third Party Claim and appoint lead counsel for shall offer to each other such defense, assistance as may reasonably be requested in each case at its expense; provided that Limited Brands or its Affiliates shall control order to ensure the defense of, proper and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the adequate defense of any Third Party Claim in accordance with such matter. Such joint defense shall be under the provisions general management and supervision of this Section 12.03the party which is expected to bear the greater share of the liability, (i) unless otherwise agreed; provided, however, that neither party shall settle or compromise any such joint defense matter without the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (other, which consent shall not be unreasonably withheld, conditioned withheld or delayed) before entering into any settlement . Any uninsured costs of such Third Party Claimjoint defense shall be borne as the parties may agree, provided, however, that in the absence of such agreement, the defense costs shall be borne by the party incurring such costs; provided, further, that, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be it is determined that one party was entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that lossSection 6, the Indemnified Party must notify other party shall reimburse the Indemnifying Party and pay party entitled to the Indemnifying Party the extent indemnification for all of the value of the benefit (or, if less, the amount of any its costs incurred in connection with such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receiveddefense.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset Contribution Agreement (Millennium Chemicals Inc), Asset Contribution Agreement (Millennium Chemicals Inc)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking If any Person who or which is entitled to seek indemnification under Section 12.02 9.2 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to give prompt notice indemnification under Section 9.2, the Indemnified Party shall promptly (i) notify the Party obligated to the party against whom indemnity is sought Indemnified Party pursuant to Section 9.2 above, (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding Third Party Claim and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Losses attributable to the Third Party may reasonably requestClaim and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify the Indemnifying Party timely provide such Claim Notice shall not relieve affect the Indemnifying Party right of its obligations the Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is prejudiced by such delay or omission.
(b) The Indemnifying Party shall be entitled have the right to participate in defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Claim asserted by any third party (“the Third Party Claim”) and, subject Claim (such election to be without prejudice to the limitations set forth in right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this SectionARTICLE IX), then the Indemnifying Party shall be entitled have the right to control the defense of defend such Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.4(b). The Indemnifying Party shall have full control of such defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates shall control Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense ofor settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall assume have the control of right to defend, and be reimbursed for its reasonable cost and expense (but only if the defense of Indemnified Party is actually ultimately determined to be entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in accordance with the provisions good faith and have full control of this Section 12.03such defense and proceedings; provided, (i) the Indemnifying Party shall obtain the prior written consent of however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into ). The Indemnifying Party may participate in, but not control, any defense or settlement of such Third Party Claim, if the settlement does not release controlled by the Indemnified Party from all liabilities pursuant to this Section 9.4(c), and obligations the Indemnifying Party shall bear its own costs and expenses with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyparticipation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution Any claim by an Indemnified Party on account of any Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and shall furnish will indicate the estimated amount, if reasonably practicable, of damages that has been or cause may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) days within which to object or accept in writing such Direct Claim. Any such objection is called a “Notice of Claim Dispute.” If the Indemnifying Party does not so respond within such twenty (20) day period, the Indemnifying Party will be furnished deemed to have rejected such recordsclaim, information and testimony, and attend in which event the Indemnified Party will be free to pursue such conferences, discovery proceedings, hearings, trials or appeals, remedies as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) available to the Indemnified Party on the terms and subject to the provisions of that mitigation this Agreement. Copies of each Notice of Claim Dispute shall be sent to Contributee and the Escrow Agent. If Contributee and Contributors fail to resolve any objection contained in such Notice of Claim Dispute within twenty (less the Indemnified Party’s reasonable costs of mitigation20) within two Business Days days after the benefit date the Notice of Claim Dispute is received.
delivered to Contributee, then, at the request of either Party, they shall meet in an attempt to resolve an objection described in such Notice of Claim Dispute and reach a written agreement with respect to such objection (f) Each Indemnified Party a “Claim Settlement Agreement”). If Contributors and Contributee enter into a Claim Settlement Agreement, the objections contained in such Notice of Claim Dispute shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged be deemed to be responsibleas resolved therein. If they are unable to resolve the objection described in such Notice of Claim Dispute within twenty (20) days after delivery to the recipient of such Notice of Claim Dispute, for any Damages payable under then Contributors and Contributee shall submit the objections contained in such Notice of Claim Dispute to arbitration as described in Section 12.029.5.
Appears in 2 contracts
Sources: Partnership Interests Contribution Agreement (Eagle Rock Energy Partners L P), Asset Contribution Agreement (Eagle Rock Energy Partners L P)
Procedures. (a) The Each party seeking entitled to indemnification under Section 12.02 this Agreement (the “each, an "Indemnified Party”") agrees to shall give prompt written notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of Claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto Claim; provided that counsel for the Indemnifying Party, who shall conduct the defense of such Claim, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party may reasonably request. The failure to so notify and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced under this Agreement unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate , in the investigation or defense of any such Claim asserted by any third party (“Third Party Claim”) andshall, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance except with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the each Indemnified Party (which consent shall not be unreasonably withheld, conditioned withheld or delayed) before entering ), consent to entry of any judgment or enter into any settlement of such Third Party Claim, if the settlement or compromise which does not include an unconditional release of the Indemnified Indemnifying Party from all liabilities and obligations with liability in respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purposeClaim. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, furnish such information regarding itself or from any other Person alleged to the Claim in question as an Indemnifying Party may reasonably request in writing and as shall be responsible, for any Damages payable under Section 12.02reasonably required in connection with the investigation and defense of such Claim.
Appears in 2 contracts
Sources: Indenture (Millicom International Cellular Sa), Indenture (Millicom International Cellular Sa)
Procedures. (a) The Each party seeking entitled to indemnification under Section 12.02 this Agreement (the “"Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of Claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto Claim; provided that counsel for the Indemnifying Party, who shall conduct the defense of such Claim, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party may reasonably request. The failure to so notify and the Indemnified Party in such action, in which case the fees and expenses of one such counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced under this Agreement unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate , in the investigation or defense of any such Claim asserted by any third party (“Third Party Claim”) andshall, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance except with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the each Indemnified Party (which consent shall not be unreasonably withheld, conditioned withheld or delayed) before entering ), consent to entry of any judgment or enter into any settlement of such Third Party Claim, if the settlement or compromise which does not include an unconditional release of the Indemnified Indemnifying Party from all liabilities and obligations with liability in respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purposeClaim. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, furnish such information regarding itself or from any other Person alleged to the Claim in question as an Indemnifying Party may reasonably request in writing and as shall be responsible, for any Damages payable under Section 12.02reasonably required in connection with the investigation and defense of such Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Good Guys Inc), Registration Rights Agreement (Good Guys Inc)
Procedures. (a) If any third party shall assert any claim against a GHS, The party seeking Learning Annex or a Shareholder, as the case may be, which, if successful, would entitle the such person to indemnification under Section 12.02 12(a) or (b), as the case may be, such person (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to shall give prompt a notice of such claim to the party against from whom indemnity is sought it intends to seek indemnification (the “"INDEMNIFYING PARTY") and the Indemnified Party shall have the right to assume the defense. If the Indemnified Party does assume such defense, the Indemnifying Party”) of Person shall indemnify and hold the assertion Indemnified Party harmless from and against any and all losses, damages and liabilities caused by or arising out of any claim, settlement or the commencement judgment of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section claim and will provide the Indemnifying Party such information Person may not claim that it does not have an indemnification obligation with respect thereto that the Indemnifying Party may reasonably requestthereto. The failure to so notify In addition, the Indemnifying Party shall not relieve have the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled right to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case claim at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, which case (i) the Indemnified Party shall cooperate in providing information to and consulting with the Indemnifying Party shall obtain about the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party claim; and (ii) the Indemnified Party shall not consent to the entry of judgment or enter into any settlement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. If the Indemnified Party does not assume the defense of any such claim, the Indemnifying Party may defend against or settle such claim in such manner and on such terms as it in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate and shall be entitled to participate indemnification in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate respect thereof in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after Section 12(a) or (b), as the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedcase may be.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Option Agreement (Dreamlife Inc), Option Agreement (GHS Inc)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking If any Person who or which is entitled to seek indemnification under Section 12.02 10.2 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to give prompt notice to indemnification under Section 10.2, the Indemnified Party shall promptly (i) notify the party against whom indemnity indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding Third Party Claim and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Losses attributable to the Third Party may reasonably requestClaim and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify the Indemnifying Party timely provide such Claim Notice shall not relieve affect the Indemnifying Party right of its obligations the Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is prejudiced by such delay or omission.
(b) The Indemnifying Party shall be entitled have the right to participate in defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Claim asserted by any third party (“the Third Party Claim”) and, subject Claim (such election to be without prejudice to the limitations set forth in right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this SectionArticle X), then the Indemnifying Party shall be entitled have the right to control the defense of defend such Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 10.3(b). The Indemnifying Party shall have full control of such defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates shall control Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense ofor settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.3(b), and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 10.3(b), then the Indemnified Party shall assume have the control of right to defend, and be reimbursed for its reasonable cost and expense (but only if the defense of Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in accordance with the provisions good faith and have full control of this Section 12.03such defense and proceedings; provided, (i) the Indemnifying Party shall obtain the prior written consent of however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into ). The Indemnifying Party may participate in, but not control, any defense or settlement of such Third Party Claim, if the settlement does not release controlled by the Indemnified Party from all liabilities pursuant to this Section 10.3(c), and obligations the Indemnifying Party shall bear its own costs and expenses with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyparticipation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution Any claim by an Indemnified Party on account of any Losses that does not result from a Third Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and shall furnish will indicate the estimated amount, if reasonably practicable, of Damages that has been or cause may be sustained by the Indemnified Party. The Indemnifying Party will have a period of five Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such five Business Day period, the Indemnifying Party will be furnished deemed to have rejected such recordsclaim, information and testimony, and attend in which event the Indemnified Party will be free to pursue such conferences, discovery proceedings, hearings, trials or appeals, remedies as may be reasonably requested in connection therewithavailable to the Indemnified Party on the terms and subject to the provisions of this Agreement.
(e) Each Indemnified Party must mitigate in accordance with applicable Law Any indemnification payment made pursuant to this Agreement shall be net of any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has insurance proceeds realized by and paid to the Indemnified Party under any indemnification provision of this Agreement in respect of that losssuch claim, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) Loss shall take into account any net Tax benefits attributable to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedcircumstance or event giving rise to such Loss.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlas Pipeline Partners Lp), Stock Purchase Agreement (Atlas America Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 Sections 9.08 or 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that it has acknowledged responsibility for the defense of such Claim; and provided further that The Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i1) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii2) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Charming Shoppes Inc), Stock Purchase Agreement (Limited Inc)
Procedures. (a) The 9.3.1 A party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees that intends to give prompt notice to claim indemnification under this Section shall promptly notify the other party against whom indemnity is sought (the “Indemnifying Party”) of the assertion in writing of any claim, or the commencement claim of any suit, action or proceeding a Third Party which may reasonably be expected to result in a claim for Damages (“Damage Claim”) in respect of which indemnity may be sought under such Section and will provide by the Indemnified Party. Notice by the Indemnified Party to the Indemnifying Party shall include a copy of the Third Party claim. An Indemnifying Party shall have the right to direct the defense, compromise or settlement of such information claim with respect thereto that counsel selected by it, provided the Indemnifying Party may reasonably requestgives written notice to the Indemnified Party of its election to do so within twenty (20) days after receipt of notice in accordance with the preceding sentence. The failure If the Indemnifying Party fails to so notify the Indemnified Party of its election to defend any such Third Party claim, the Indemnified Party will (upon further notice to the Indemnifying Party shall not relieve Party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and expense of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of its obligations hereundersuch claim at any time prior to settlement, except to compromise or final determination thereof if and only if such assumption would not prejudice the extent defense of such failure shall have adversely prejudiced claim or the Indemnifying rights of the Indemnified Party.
(b) The 9.3.2 In the event an Indemnifying Party shall be entitled to participate in has assumed the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled nonetheless have the right to select its own counsel and participate in the defense of such claim at and for its own expense and account. Where the Indemnifying Party has assumed defense of any Damage Claim, the Indemnified Party and its counsel, if retained, shall consult and cooperate with counsel for the Indemnifying Party in defending against any such Third Party Claim claim. Such cooperation shall include, without limitation, providing documents, making employees available for interviews, depositions and testimony and consultation on technical matters.
9.3.3 An Indemnifying Party shall not under any circumstances, without the written consent of the Indemnified Party, settle or compromise any claim or consent to employ separate counsel the entry of any judgment which might in any material way prejudice or adversely affect the Indemnified Party or its choice for such purpose. The fees continued business activities and expenses which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a release from all liability in respect of such separate counsel shall be paid by claim, in form and substance reasonably satisfactory to the Indemnified Party.
(d) Each party shall cooperate9.3.4 Notwithstanding anything to the contrary contained herein, and cause their respective Affiliates with respect to cooperate, in the defense or prosecution of any a Third Party Claim and shall furnish or cause claim that can be settled by the payment of money, if a Third Party claim is made which the Third Party is unequivocally willing to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each settle but an Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after elects not to settle, then the Indemnifying Party has paid shall not be liable hereunder, with respect to any Damage Claim arising from such Third Party claim, for more than the amount which such Third Party at any time unequivocally agrees in writing to accept in payment or compromise of the claim plus any related costs and expenses incurred by the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent as of the value date of the benefit (or, if less, the amount such offer of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedsettlement.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Manufacturing Agreement (Amylin Pharmaceuticals Inc), Manufacturing Agreement (Amylin Pharmaceuticals Inc)
Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 4.7 (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The 's ability to defend such action and provided further, that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Investor Rights Agreement (Dna Sciences Inc), Agreement and Plan of Merger and Reorganization (Axys Pharmecueticals Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 15.2 ---------- (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under Section 15.2; provided that the failure to give such Section and will provide notice shall not limit the Indemnifying Party such information with respect thereto Indemnified Party's right to indemnification hereunder except to the extent that the Indemnifying Party may reasonably requestis materially prejudiced thereby. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to assume control of the defense of any such suit, action or proceeding and the Indemnified Party may participate in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch suit, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case action or proceeding at its own expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the . The Indemnifying Party shall assume the control of the defense not be liable under Section 15.2 for any settlement effected without its consent of any Third claim, litigation or proceeding in respect of which indemnity may be sought hereunder; provided, however, that consent to settlement shall not be unreasonably withheld or delayed. In any such suit, action or proceeding, the Indemnified Party Claim in accordance with shall have the provisions right to retain its own counsel, but the fees and expenses of this Section 12.03, such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheldhas agreed to pay such fees and expenses, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Indemnifying Party shall be entitled has failed to participate in assume the defense of such Third suit, action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, or (iii) in the reasonable judgment of such Indemnified Party Claim and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in any which case, if the Indemnified Party notifies the Indemnifying Party in writing that the Indemnified Party elects to employ separate counsel at the expense of its choice for the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such purposesuit, action or proceeding on behalf of the Indemnified Party. The Indemnifying Party shall not be liable for the fees and expenses of such more than one separate counsel shall be paid by firm of attorneys (in addition to any local counsel) at any time for all the Indemnified PartyParties.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Greater Bay Bancorp), Stock Purchase Agreement (Greater Bay Bancorp)
Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 2.6 (the “"Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The 's ability to defend such action and provided further, that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Shareholder Agreements (Florida Gaming Corp), Stockholders Agreement (Prides Capital Partners, LLC)
Procedures. (a) The party seeking indemnification under Section 12.02 10.02 or Section 10.03 (the “"Indemnified Party”") agrees to give prompt notice written notice, but no later than 5 days after receipt thereof, to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of of, investigation of, or corrective action required to be undertaken in response to, any Claim asserted by a third party, including any third party Governmental Authority (“"Third Party Claim”") and, subject to the limitations set forth in this SectionSection or Section 10.03, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control expense subject to the defense ofdeductible and maximum liability described in Section 10.02 and Section 10.03, and appoint the lead counsel in connection with, the Retained Litigationas applicable.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03or Section 10.03, (i) 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 of such Third Party Claim, Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim (including any counterclaims filed by Sellers) and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. This cooperation shall be provided without cost or expense other than reimbursement of out-of-pocket travel or similar expenses subject to the provisions of Section 10.02 and Section 10.03, as applicable.
(e) Each Indemnified Party must mitigate in accordance Other than with applicable Law any loss for respect to liabilities relating to matters covered by Section 7.07(a) (which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after shall be governed solely by Section 7.07), if the Indemnifying Party has paid is required to indemnify the Indemnified Party with respect to any Claim or assumes the defense of any Third Party Claim under Section 10.02 or Section 10.03, the Indemnifying Party shall have the right, in good faith, to determine all matters relating to the utilization of any indemnification provision insurance policy of any Transferred Company in connection with the Claim or Third Party Claim and shall be entitled to control all decisions relating to such claims under such insurance policies as if it were the named insured thereunder; provided, however, that notwithstanding anything in this Agreement in respect of that loss10.04(e) to the contrary, the Indemnified Party must notify shall entitled to indemnification pursuant to the provisions of Section 10.02 or Section 10.03 regardless of whether a claim under such insurance policies is pursued and regardless of whether any proceeds from such claim are collected. Buyer and Parent agree to cooperate and take all reasonable actions necessary to implement the intent of the provisions set forth in this clause (e), and each Indemnified Party further agrees that it will not take any action that is inconsistent with the provisions of this clause (e) and will refrain from taking any action or doing anything that would undermine the insurance benefits available to Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid as contemplated by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedthis Section 10.04(e).
(f) Each Indemnified Party To the extent that the procedures set forth in this Section 10.04 conflict with the procedures set forth in Section 10.03, the procedures set forth in Section 10.03 shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02govern.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Hubbell Inc), Stock and Asset Purchase Agreement (Us Industries Inc /De)
Procedures. (a) The party seeking indemnification under Section 12.02 A Party (the “"Indemnified Party”") agrees with respect to a Loss or claim or demand for indemnification by any Person against such Party (a "Third Party Claim") shall give prompt notice (the "Claim Notice") of such Loss, claim or demand to the party against Party from whom indemnity such Claim is sought made (the “"Indemnifying Party”") with reasonable promptness after the Indemnified Party's receipt of notice of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Third Party Claim and will shall provide the Indemnifying Party with such information in connection therewith as the Indemnifying Party may reasonably request. However, the failure to give notice of a Claim Notice shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party for any and all Losses that may be incurred by the Indemnified Party as a result of a Third Party Claim pursuant to the terms of this Agreement, to the extent that such Losses are applicable only to civil economic losses as provided for by law, then the Indemnifying Party shall be entitled to assume the defense of such Third Party Claim with counsel selected by the Indemnifying Party at its own expense (without reference to any limitations on indemnification hereunder) and satisfactory to the Indemnified Party within 15 days of the receipt of the Claim Notice from the Indemnified Party in connection with such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that could impose criminal liability or indemnification and the Indemnified Party shall be entitled to defend any such Third Party Claim, at the Indemnifying Party's expense. The Indemnifying Party shall be responsible for the fees and expenses of the counsel retained by the Indemnified Party due to any failure of the Indemnifying Party to assume the defense of the Third Party Claim. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim during the Term or as provided in the first sentence of this Section 7.4 (b), then the Indemnified Party shall have the sole right to assume the defense of and settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to retain its own counsel and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall be expressly authorized in writing by the Indemnifying Party or (ii) the parties named in the Third Party Claim (including any Sued Party) include both the Indemnified Party and the Indemnifying Party and representation of both the Indemnifying Party by the Indemnifying Party's counsel could result in a conflict of interest with respect thereto that to such counsel. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense, at the reasonable request and expense of the Indemnifying Party, and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party's possession or under the Indemnified Party's control. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party may not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise, or consent to entry of any judgment, if such settlement, compromise or judgment (i) involves a discovery or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party of all liability related to such Third Party Claim, or (iii) impose equitable relief or any obligation on the Indemnified Party other than the payment only of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification with respect to a Loss or claim or demand under this Agreement (a "Direct Claim") shall, with reasonable promptness after becoming aware of the facts giving rise to such Direct Claim, give the Indemnifying Party notice of such Loss or claim or demand and provide the Indemnifying Party with such information regarding such Loss or claim or demand as the Indemnifying Party may reasonably request. The failure to so notify deliver a notice of claim, however, will not release the Indemnifying Party shall from any of its obligations under this Article VII except to the extent the Indemnifying Party is materially prejudiced by such failure and will not relieve the Indemnifying Party of its obligations hereunder, except from any other obligation or liability that it may have to the extent such failure shall have adversely prejudiced Indemnified Party or pursuant to the terms of this Article VII. If the Indemnifying Party does not notify the Indemnified Party that it disputes its liability to the Indemnified Party under this Agreement within 10 days of receiving a notice of claim for a Direct Claim, then the Direct Claim specified by the Indemnified Party in such notice of claim shall be conclusively deemed to be the liability of the Indemnifying Party under this Agreement and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an obligation to indemnify but asserts that it should pay a lesser amount than is claimed by the Indemnified Party, the Indemnifying Party shall promptly pay such lesser amount to the Indemnified Party, without prejudice to or representing a waiver of the Indemnified Party's claim for any deficiency.
(bd) The Indemnifying Party shall be entitled have no right to participate in the defense of assert or institute any Claim asserted action against any other Person before an action is instituted or a claim is made by any third party (“Third an Indemnified Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If against the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of under this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithAgreement.
(e) Each Notwithstanding Section 9.8, each Indemnifying Party hereby consents to the non- exclusive jurisdiction of any court in respect of any Claim that the Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified a Third Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after Claim may have against the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement with respect to such action or the matters asserted therein and agrees that process may be served upon each Indemnifying Party in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaim anywhere.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Share Purchase Agreement (Hainan Oriental Jiechuang Investment Partnership (Limited Partnership)), Share Purchase Agreement (Aesthetic Medical International Holdings Group LTD)
Procedures. (a) The party seeking indemnification under Section 12.02 If any Party (the “Indemnified Party”) agrees receives notice of any Third Party Claim for which the other Party has an obligation to give prompt notice to the party against whom indemnity is sought indemnify (the “Indemnifying Party”) of ), the assertion of any claimIndemnified Party shall, or the commencement of any suitas promptly as is reasonably possible, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide give the Indemnifying Party notice of such information with respect thereto Third Party Claim; provided, however, that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party give such notice promptly shall not only relieve the Indemnifying Party of its obligations hereunder, except any indemnification obligation it may have hereunder to the extent such failure shall have adversely prejudiced diminishes the ability of the Indemnifying Party.
(b) Party to respond to or to defend against such Third Party Claim. The Indemnifying Party and the Indemnified Party shall be entitled consult and cooperate with each other regarding the response to participate in and the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall, upon its acknowledgment in writing of its obligation to indemnify, be entitled to and shall assume the control defense or represent the interests of the defense Indemnified Party (or any other applicable indemnified parties) in respect of any such Third Party Claim Claim, that shall include the right to select and direct legal counsel and other consultants to appear in accordance with proceedings on behalf of the provisions Indemnified Party (or any other applicable indemnified parties) and to propose, accept or reject offers of this Section 12.03settlement, all at its sole cost; provided, however, that no such settlement that requires any payment or action by or admits wrongdoing of the Indemnified Party (ior any other applicable indemnified parties) the Indemnifying Party shall obtain be made without the prior written consent of the Indemnified Party (which shall Party, such consent not to be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release . Nothing herein shall prevent the Indemnified Party from all liabilities retaining its own counsel and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party participating in its own defense at its own cost and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyexpense.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: License Agreement (Oculis Holding AG), License Agreement (European Biotech Acquisition Corp.)
Procedures. (a) The party seeking indemnification under Section 12.02 6.01 (the “Indemnified Party”) agrees to shall give prompt notice in writing to the party Party against whom indemnity is to be sought (the “Indemnifying Party”) of the assertion of any claim, claim or the commencement of any suit, action or proceeding by any third party (“Third Party Claim”) in respect of which indemnity may be sought under such Section Section. Such notice shall set forth in reasonable detail such Third Party Claim and will provide the Indemnifying Party such basis for indemnification (taking into account the information with respect thereto that then available to the Indemnifying Party may reasonably requestIndemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) Claim and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its own expense; provided that Limited Brands prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for the alleged Damages resulting from such Third Party Claim as provided under this Article 6; and provided further that #90879273v29 any Third Party Claim relating to any alleged infringement, misappropriation or its Affiliates other violation of any third-party Intellectual Property Right shall be solely controlled by Pernix, who will act under and at the direction of the Company Board so long as there is no conflict between the Company’s rights and interests and Pernix’s rights and interests; and in the case of any conflict, the Company shall assume control of such defense and Pernix shall be entitled to participate in the defense ofand employ separate counsel of its choice for such purpose, in which case the fees and appoint the lead expenses of such separate counsel in connection with, the Retained Litigationshall be borne by Pernix.
(c) The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying Party does not deliver the acknowledgment referred to in Section 6.03(b) within thirty (30) days of receipt of notice of the Third Party Claim pursuant to Section 6.03(a), (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iii) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be materially detrimental to the reputation or future business prospects of the Indemnified Party or any of its Subsidiaries, or (iii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates.
(d) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.036.03, (i) 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 of such Third Party Claim, if the settlement does not expressly unconditionally release the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and or any of its Affiliates.
(iie) In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim, the Indemnified Party shall be entitled to participate in the defense of such any Third Party Claim and to employ separate counsel of its choice for such purpose. The , in which case the fees and expenses of such separate counsel shall be paid borne by the Indemnified Party; provided that the Indemnifying Party shall pay the reasonable fees and expenses of such separate counsel if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest.
(df) Each party Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(eg) Each In the event an Indemnified Party must mitigate in accordance with applicable Law any loss has a claim for which such indemnity under Section 6.01 against an Indemnifying Party that does not involve a Third Party Claim, the #90879273v29 Indemnified Party seeks agrees to give prompt, written notice of such claim to the Indemnifying Party. Such notice shall set forth in reasonable detail such claim and the basis for indemnification under this Agreement(taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. If such the Indemnifying Party does not notify the Indemnified Party mitigates within thirty (30) days following the receipt of a written notice with respect to any such claim that the Indemnifying Party disputes its loss after indemnity obligation to the Indemnified Party for any Damages with respect to such claim, such Damages shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall promptly pay to the Indemnified Party any and all Damages arising out of such claim. If the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, timely disputed its indemnity obligation for any Damages payable under Section 12.02with respect to such claim, the Parties shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by binding arbitration pursuant to the terms set forth in Section 8.07.
Appears in 2 contracts
Sources: Services Agreement (Pernix Therapeutics Holdings, Inc.), Services Agreement
Procedures. (a) The Any party seeking indemnification under Section 12.02 Sections 8.02, 9.02, and 11.02 (the “Indemnified Party”) agrees to shall give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or Third Party Claim; provided that no delay on the commencement part of any suit, action or proceeding (“Claim”) the Indemnified Party in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations any liability or obligation hereunder, except to the extent such failure shall have adversely prejudiced that the Indemnifying Party.
(b) Party has been prejudiced thereby. The Indemnifying Party shall be entitled to may, and at the request of the Indemnified shall, participate in and control the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its own expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) . If the Indemnifying Party shall assume the assumes control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03Claim, (i) the Indemnifying Party shall obtain the prior written consent of not be liable under Sections 8.02, 9.02 and 11.02 for any settlement effected by the Indemnified Party (which without its consent of any Third Party Claim. Notwithstanding the foregoing, if the Indemnifying Party assumes the defense of a Third Party Claim and if the Indemnified Party later determines in good faith that a Third Party Claim is likely to materially adversely affect it or its business in a manner that may not be adequately compensated by the money damages, then the Indemnified Party may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such claim. If the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the Indemnified Party in the defense, compromise or settlement of such claim shall be at the Indemnified Party’s expense and shall not be unreasonably withheldeligible for indemnification from the Indemnifying Party, conditioned or delayed) before entering into any settlement of such Third Party Claim, if but the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Indemnifying Party shall be entitled to participate in be indemnified by the Indemnifying Party for the full amount of any other Damages suffered by the Indemnified Party as a result of or arising out of the Third Party Claim. The party controlling the defense of such Third Party Claim and to employ separate counsel any third party suit, action or proceeding shall keep the other party advised of its choice for such purpose. The fees and expenses the status of such separate counsel action, suit or proceeding and the defense thereof and shall be paid consider in good faith recommendations made by the Indemnified Partyother party with respect thereto.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 2 contracts
Sources: Asset Purchase Agreement (ClearStory Systems, Inc.), Asset Purchase Agreement (Datawatch Corp)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking If any Person who or which is entitled to seek indemnification under Section 12.02 9.2 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third-Party Claim”) in respect of any matter that is subject to give prompt notice indemnification under Section 9.2, the Indemnified Party shall promptly (i) notify the Party(ies) obligated to the party against whom indemnity is sought indemnify (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding Third-Party Claim and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third-Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Losses attributable to the Third-Party may reasonably requestClaim and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify the Indemnifying Party timely provide such Claim Notice shall not relieve affect the Indemnifying Party right of its obligations the Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is prejudiced by such delay or omission.
(b) The Indemnifying Party shall be entitled have the right to participate in defend the Indemnified Party against such Third-Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any the Third-Party Claim asserted by any third party (“Third Party Claim”) and, subject such election to be without prejudice to the limitations set forth in right of the Indemnifying Party to dispute whether such claim is an indemnifiable Loss under this SectionArticle IX), then the Indemnifying Party shall have the right to defend such Third-Party Claim with counsel selected by the Indemnifying Party (who shall be entitled reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.4(b). The Indemnifying Party shall have full control the defense of such Third Party Claim defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates shall control or impact it in any financial manner. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third-Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third-Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense ofor settlement of any Third-Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party shall assume does not notify the control of the defense of any Third Indemnified Party Claim in accordance with the provisions of this Section 12.03, (i) that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall obtain have the prior written consent of right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third-Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third-Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third-Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into ). The Indemnifying Party may participate in, but not control, any defense or settlement of such Third Party Claim, if the settlement does not release controlled by the Indemnified Party from all liabilities pursuant to this Section 9.4(c), and obligations the Indemnifying Party shall bear its own costs and expenses with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyparticipation.
(d) Each party shall cooperateAny claim by an Indemnified Party on account of Losses that does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 60 days after the Indemnified Party becomes fully aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and cause their respective Affiliates will indicate the estimated amount, if reasonably practicable, of Losses that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of 5 Business Days within which to cooperaterespond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such period, the Indemnifying Party will be deemed to have rejected such claim, in which event the defense or prosecution of any Third Indemnified Party Claim and shall furnish or cause will be free to be furnished pursue such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, remedies as may be reasonably requested in connection therewithavailable to the Indemnified Party subject to the provisions of this Agreement.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks Any indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of payment made pursuant to this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay shall take into account any Tax benefits attributable to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any circumstance or event giving rise to such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedLoss.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Purchase and Sale Agreement (DCP Midstream Partners, LP)
Procedures. (a) The A party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third-Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the assertion of any claimThird-Party Claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party with such information with respect thereto as 71
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third-Party Claim that is exclusively for civil monetary damages at Law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim that (i) seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief, (ii) relates to or arises in connection with any criminal action, indictment, allegation or investigation, (iii) presents, under applicable standards of professional conduct, a conflict on any significant issue between the Indemnified Party and the Indemnifying Party or (iv) involves a material customer, supplier or distributor, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third-Party Claim. 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. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), then the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third-Party Claim, then the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third-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 the defense of any Third-Party Claim, then the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying 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. If the Indemnifying Party assumes the defense of any Third-Party Claim, then the Indemnifying Party shall not, without the prior written consent of the Indemnified 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) involves a finding or admission of wrongdoing, (ii) 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 or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. 72
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request, to the extent such information is reasonably available. The failure to so notify deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party of its obligations hereunder, except from any other obligation or liability that it may have to the extent Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such failure lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have adversely prejudiced been notified to the Indemnifying Party.
(be) The Indemnifying Party shall not be entitled to participate in require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the defense Indemnified Party.
(f) Notwithstanding the provisions of Section 9.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim asserted is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere. Section 7.5 Remedies Not Affected by any third party (“Third Party Claim”) andInvestigation, Disclosure or Knowledge. If the transactions contemplated hereby are consummated, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection withAgreement, the Retained Litigation.
(c) If Buyer expressly reserves the Indemnifying Party shall assume the control right to seek indemnity or other remedy for any Losses arising out of or relating to any breach of any representation, warranty, agreement or covenant contained herein, notwithstanding any investigation by, disclosure to, knowledge or imputed knowledge of the defense Buyer or any of its Representatives in respect of any Third Party Claim in accordance with fact or circumstance that reveals the provisions occurrence of this Section 12.03any such breach, (i) whether before or after the Indemnifying Party shall obtain the prior written consent execution and delivery hereof. In furtherance of the Indemnified Party (which foregoing, the Seller agrees that as knowledge or lack of reliance shall not be unreasonably withhelda defense in law or equity to any claim of breach of representation, conditioned warranty or delayed) before entering into covenant by the Seller herein, the Seller shall not in any settlement proceeding concerning a breach or alleged breach of such Third Party Claimany representation, if warranty or covenant herein, or any indemnity thereof, seek information concerning knowledge or reliance of the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim Buyer or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel any of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperateRepresentatives, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferencesthrough deposition, discovery proceedings, hearings, trials or appeals, as may be reasonably requested otherwise or seek to introduce evidence or argument in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after proceeding regarding the Indemnifying Party has paid the Indemnified Party under any indemnification provision knowledge or lack of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent reliance of the value Buyer or any of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.73
Appears in 1 contract
Procedures. (a) The party seeking Except as otherwise provided in Section 5.7.6, claims for indemnification under this Agreement will be asserted and resolved as follows:
7.3.1 If any Person who or which is entitled to seek indemnification under Section 12.02 7.2 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third Person (“Third Party Claim”) in respect of any matter that is subject to give prompt notice to indemnification under Section 7.2, the Indemnified Party will promptly (i) notify the party against whom indemnity indemnification is sought (the “Indemnifying Party”) of the assertion of any claimThird Party Claim, or the commencement of any suit, action or proceeding and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Losses attributable to the Third Party may reasonably requestClaim and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify timely provide such Claim Notice will not affect the Indemnifying Party shall not relieve right of the Indemnifying Party of its obligations Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is prejudiced by such delay or omission.
(b) 7.3.2 The Indemnifying Party shall be entitled will have the right to participate in defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Claim asserted by any third party (“the Third Party Claim”) and, subject Claim (such election to be without prejudice to the limitations set forth in right of the Indemnifying Party to dispute whether such claim is an indemnifiable Loss under this SectionSection 7), shall be entitled then the Indemnifying Party will have the right to control the defense of defend such Third Party Claim with counsel selected by the Indemnifying Party (who will be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 7.3.2. The Indemnifying Party will have full control of such defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume will not enter into any settlement agreement without the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall consent will not be unreasonably withheld, conditioned or delayed); provided further, that such consent will not be required if (i) before entering the settlement agreement contains a complete and unconditional general release by the third Person asserting the claim of all Indemnified Parties affected by the claim, and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 7.3.2, and the Indemnified Party will bear its own costs and expenses with respect to such participation.
7.3.3 If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 7.3.2, then the Indemnified Party will have the right to defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who will be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings will be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party will defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party ClaimClaim if indemnification is to be sought hereunder, if without the Indemnifying Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement does not release controlled by the Indemnified Party from all liabilities pursuant to this Section 7.3.3, and obligations the Indemnifying Party will bear its own costs and expenses with respect to such participation.
7.3.4 Any claim by an Indemnified Party on account of Losses that does not result from a Third Party Claim or (a “Direct Claim”) will be asserted by giving the settlement imposes injunctive or other equitable relief against Indemnifying Party reasonably prompt written notice thereof. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and (ii) will indicate the Indemnified Party shall estimated amount, if reasonably practicable, of Losses that have been or may be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid sustained by the Indemnified Party.
. The Indemnifying Party will have a period of ten (d10) Each party shall cooperateBusiness Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such ten (10) Business Day period, and cause their respective Affiliates the Indemnifying Party will be deemed to cooperatehave rejected such claim, in which event the defense or prosecution of any Third Indemnified Party Claim and shall furnish or cause will be free to be furnished pursue such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, remedies as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) available to the Indemnified Party on the terms and subject to the provisions of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedthis Agreement.
(f) 7.3.5 Each Indemnified Party shall will use commercially reasonable efforts to collect make applicable insurance claims with respect to any amounts available under insurance coverage, or from any other Person alleged claim for which it is seeking indemnification pursuant to be responsible, for any Damages payable under this Section 12.027.
Appears in 1 contract
Procedures. (a) The Subject to the provisions of Section 10.04, the party seeking indemnification under Section 12.02 10.02 (the “Indemnified Party”) agrees to give reasonably prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section 10.02 and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The parties hereby acknowledge and agree that except with respect to matters arising under Section 10.02(b), the failure by any Indemnified Party to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, indemnification obligation under this Agreement except to the extent that such Indemnifying Party is prejudiced as a result of such failure shall have adversely prejudiced the Indemnifying Partyto give notice.
(b) The Subject to Section 10.04, the Indemnifying Party shall be entitled to participate in the defense of of, investigation of, corrective action or any Remedial Action required to be undertaken in response to, any Claim asserted by a third party, including any third party Governmental Authority (“Third Party Claim”) and, subject to the limitations set forth in this SectionSection or Section 10.04, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control expense subject to the defense of, deductible and appoint the lead counsel maximum liability (as and if applicable) described in connection with, the Retained LitigationSection 10.02.
(c) If the Indemnifying Party shall assume the control and cost of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03or Section 10.04, (i) 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 of such Third Party Claim, Claim if the settlement does not provide for the unconditional written release of the Indemnified Party from any and all liabilities and obligations with respect to such Third Party Claim or if the settlement imposes injunctive or any form of relief other equitable relief than monetary against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. In the event that the Indemnified Party shall in good faith determine that the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect of such claim or any litigation relating thereto, the Indemnified Party shall have the right to retain separate legal counsel and participate in the defense, settlement, negotiations or litigation relating to any such claim at the sole cost of the Indemnifying Party, provided that if the Indemnified Party does so participate, the Indemnified Party shall not settle such claim or litigation without the written consent of the Indemnifying Party, such consent not to be unreasonably withheld.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim (including any counterclaims filed by Sellers or Buyer) and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. This cooperation shall be provided without cost or expense of the other party other than reimbursement of out-of-pocket travel or similar expenses subject to the provisions of Section 10.02.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0210.02.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Us Industries Inc /De)
Procedures. (a) The party seeking indemnification under Article 8 or 9 or Section 12.02 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section or Article and will provide the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request. The failure so to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely materially prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to (and at the request of the Indemnifying Party shall) control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates . The Indemnified Party shall control obtain the defense of, and appoint written consent of the lead counsel in connection with, the Retained LitigationIndemnifying Party before entering into any settlement of any Third Party Claim.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Purchase Agreement (Rj Reynolds Tobacco Holdings Inc)
Procedures. (a) The A party seeking indemnification under Section 12.02 pursuant to Sections 7.2 or 7.3 (the “an "Indemnified Party”") agrees to shall give prompt notice to the party against from whom indemnity such indemnification is sought (the “"Indemnifying Party”") of the assertion of any claimclaim or assessment, or the commencement of any action, suit, action audit or proceeding (“Claim”) proceeding, by a third party in respect of which indemnity may be sought under such Section hereunder (a "Third Party Claim") and will provide give the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within 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. The failure Indemnifying Party shall have the right, exercisable by written notice (the "Notice") to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. Should the Indemnifying Party so notify elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not relieve 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 shall fail to assume the defense of its obligations hereunderthe Third Party Claim within such thirty (30) day period, except to the extent such failure Indemnified Party shall have adversely prejudiced the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such 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.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall be entitled in any event have the right to participate participate, at its own expense, in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control which the defense of, and appoint the lead counsel in connection with, the Retained Litigationother is defending.
(c) If the The Indemnifying Party Party, if it shall assume the control of have assumed the defense of any Third Party Claim in accordance with the provisions terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of this Section 12.03judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or settlement unless (i) the Indemnifying Third Party shall obtain Claim involves equitable or other non-monetary damages or (ii) in the prior reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate, and cause their respective Affiliates to cooperate, cooperate in the defense or prosecution of any Third Party Claim thereof and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, and appeals as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay Such cooperation shall include access during normal business hours afforded to the Indemnifying Party the extent of the value of the benefit (orrecords and information which are reasonably relevant to such Third Party Claim, if less, the amount and making employees available on a mutually convenient basis to provide additional information and explanation of any such loss previously paid by material provided hereunder, and the Indemnifying Party) to Party shall reimburse the Indemnified Party of that mitigation (less the Indemnified Party’s for all its reasonable costs of mitigation) within two Business Days after the benefit is receivedout-of-pocket expenses in connection therewith.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. (a) The party seeking A Person entitled to receive indemnification under Section 12.02 this Article VIII (the an “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought from a Party (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide shall give written notice to the Indemnifying Party such information of any claim with respect thereto to which it seeks indemnification as promptly as reasonably practicable after the discovery by such Indemnified Party of any matters giving rise to a claim for indemnification; provided that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunderunder this Article VIII unless (and solely to the extent) that the Indemnifying Party shall have been materially prejudiced by the failure of such Indemnified Party to so notify such Indemnifying Party. Such notice shall describe in reasonable detail the nature of such claim, except identify the Sections of this Agreement that form the basis of such claim, attach copies of all material written evidence thereof received from any third party to the date of such notice and set forth the estimated amount of indemnifiable Losses relating thereto to the extent such failure shall have adversely prejudiced the Indemnifying Partyreasonably estimable.
(b) The If an Action is brought against an Indemnified Party by a third party, the Indemnifying Party shall be entitled to, by written notice to participate in the Indemnified Party, assume control of, and conduct the defense of any Claim asserted by any third party (“Third of, such Action with counsel reasonably acceptable to the Indemnified Party Claim”) and, subject to the limitations set forth in this Sectionsuch case, shall not be entitled to control liable for legal or other expenses incurred by the Indemnified Party in connection with the defense of such Third Party Claim and appoint lead counsel for Action following the assumption of such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall not be permitted to assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03an Action, (i) the Indemnifying Party and shall obtain the prior written consent of be required to be liable for reasonable legal or other expenses incurred by the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement in connection with the defense of such Third Party ClaimAction, if in the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and event (iix) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as have reasonably concluded that there may be reasonably requested legal defenses available to it that are different from or in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay addition to those available to the Indemnifying Party the extent or that there is otherwise a conflict of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to interest between the Indemnified Party of that mitigation (less and the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Indemnifying Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.or
Appears in 1 contract
Sources: Stock Purchase Agreement
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates such counsel shall be reasonably acceptable to the Indemnified Party. If the Indemnifying Party shall not have assumed the control of the defense of, and appoint of any Third Party Claim in accordance with the lead counsel in connection withprovisions of this Section 11.03(b), the Retained LitigationIndemnifying Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnifying Party.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of or ceasing to defend such Third Party Claim, Claim if the settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim without prejudice or the settlement or cessation imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel at the Indemnifying Party’s expense or (ii) the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable best efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
Appears in 1 contract
Procedures. (a) The In order for a party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought Stockholder Agent, on behalf of the Stockholders, and the individual Stockholder where the matter relates to a breach of such Stockholder’s representations, warranties or covenants in Article I of the Stockholder Agreement, or to Acquiror, as applicable (the “Indemnifying Party”) ), and in each case to the Escrow Agent, promptly after receipt by such Indemnified Party of written notice of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Third Party Claim and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify provide such notice, however, shall not release the Indemnifying Party shall not relieve the Indemnifying Party from any of its obligations hereunder, under this Article VIII except to the extent such failure shall have adversely prejudiced that the Indemnifying PartyParty is materially prejudiced by such failure. If any insurance carrier is obligated or agrees to defend any Third Party Claim in connection with any attempt to obtain insurance coverage with respect to such Third Party Claim, such defense shall be tendered to such insurance carrier and the rights of the parties among themselves regarding the assumption and control of such defense shall, as among one another, be subject to the requirements of such insurance carrier.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be entitled liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to participate in assume the defense of any Claim asserted by any third party (“Third thereof. If the Indemnifying Party Claim”) and, subject does not expressly elect to the limitations set forth in this Section, shall be entitled to control assume the defense of such Third Party Claim within the time period and appoint lead counsel for such defenseotherwise in accordance with the this Section 8.4(b), in each case at its expense; provided that Limited Brands or its Affiliates the Indemnified Party shall control have the sole right to assume the defense of, of and appoint the lead counsel in connection with, the Retained Litigation.
(c) to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall assume have the control right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third 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 the defense of any Third Party Claim in accordance Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the provisions Indemnifying Party in such defense and make available to the Indemnifying 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. If the Indemnifying Party assumes the defense of this Section 12.03any Third Party Claim, (i) the Indemnifying Party shall obtain not, without the prior written consent of the Indemnified 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 (A) involves a finding or admission of wrongdoing, (B) 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 or (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. The Indemnified Party may agree to any monetary settlement of, or the entry of any judgment arising from, any such Third Party Claim, but in the absence of the written consent of the Indemnifying Party, which shall not be unreasonably withheld, conditioned or delayed) before entering into any , no settlement shall be determinative of the amount of Losses an Indemnified Party is entitled to recover pursuant to this Article VIII. The non-controlling party may participate in such defense at its own expense. The controlling party shall keep the non-controlling parties advised of the status of such Third Party Claim, if Claim and the settlement does not release defense thereof. The non-controlling parties shall reasonably cooperate with and assist the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate controlling party in the defense of such Third Party Claim and to employ separate counsel of its choice for such purposeClaim. The fees and expenses of such separate counsel to the Indemnified Party with respect to a Third Party Claim shall be paid considered Losses for purposes of this Agreement. Notwithstanding the foregoing, no Stockholders shall be entitled to (a) control any claim relating to intellectual property matters or for Taxes for any period after the Closing Date, or (b) settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability of the Company for Taxes for any period (or portion thereof) after the Closing Date, without the prior written consent of Acquiror.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder 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 with reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall be obligated to pay the amount of such liability to the Indemnified Party on demand, which may be effected as contemplated in Sections 8.4(d) and 8.7 herein. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount (as consent to offset) promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder in respect of a Third Party Claim shall be made, subject to the provisions of this Section 8.4 and not pending a dispute with respect thereto, by prompt offset against the Indemnity Escrow (and forfeiture and cancellation of the Acquiror Common Stock offset) in an amount equal to the Losses as determined based upon the Share Value, or where the Indemnity Escrow is insufficient (including due to forfeiture of Restricted Stock as contemplated by Section 2.11) to cover indemnifiable Losses or a Third Party Claim, against Restricted Stock of the Indemnifying Party (subject to the limitations in Section 8.5(a)), as and when invoices (as to which there is no pending dispute under Section 8.4) are received by the Indemnifying Party or Losses incurred (as to which there is no pending dispute under Section 8.4) have been notified to the Indemnifying Party, subject to Section 8.4(b) and (c), and to the extent such Restricted Stock is insufficient then by claim to the Securityholders.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(df) Each party shall cooperateNotwithstanding the provisions of Section 10.9, and cause their respective Affiliates each Indemnifying Party hereby consents to cooperate, in the defense or prosecution nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as agrees that process may be reasonably requested in connection therewithserved on each Indemnifying Party with respect to such claim anywhere.
(eg) Each Indemnified Party must mitigate in accordance with applicable Law any loss Any Taxes that are the responsibility of the Stockholders pursuant to Section 8.2(f) shall be paid to Acquiror or the Survivor no later than five (5) days prior to the due date for which the payment of such Indemnified Party seeks indemnification under this AgreementTaxes. If not paid by such Indemnified Party mitigates its loss after date, Acquiror may seek indemnification therefor.
(h) Pending the Indemnifying Party has paid the Indemnified Party under resolution or settlement of any indemnification provision of this Agreement in dispute with respect of that lossto a claim for indemnification, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of such unresolved dispute, no payment for indemnification must be made and no Common Stock that may be the value subject of such pending dispute held in the Indemnity Escrow or constituting Restricted Stock on the date of notification of the benefit indemnification claim shall be forfeited and cancelled nor shall be released to any Indemnified Party, Acquiror or any Stockholder. Such dispute shall be deemed to be resolved upon (ori) the mutual agreement of Acquiror and the Stockholder Agent (in the case of Stockholder indemnification for Company matters) and the Stockholder(s) in question (in the case of Stockholder indemnification solely relating to the Stockholder Agreement), or (ii) a final, non-appealable order, decree or judgment of a court of competent jurisdiction, or if less, the amount of any such loss previously paid agreed by the Indemnifying Party) parties to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedsuch dispute, a third party dispute resolution mechanism.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party Party seeking indemnification under Section 12.02 11.2 (the “"Indemnified Party”") agrees to give prompt written notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”) "), in respect of which indemnity may be sought under such Section for Damages hereunder and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request, including in any case, copies of any summons, complaint or other pleading which may have been served and any written claim, demand, invoice, billing or other document evidencing or asserting the Claim, and a good faith estimate of the amount of the Claim for indemnity. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, defense in each case at its expense; provided that Limited Brands or . If the Indemnifying Party assumes the control of the defense, the Indemnified Party shall be entitled to employ counsel, at its Affiliates expense, separate from the counsel employed by the Indemnifying Party. In any event, the parties shall control cooperate in the defense of, and appoint the lead counsel in connection with, the Retained Litigationor prosecution of any Third Party Claim.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.3, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party The Stockholders and Buyer shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified The Seller's Representative and Buyer shall make available to each other, their counsel and accountants all information and documents reasonably available to them which relate to any Third Party must mitigate Claim subject to indemnity hereunder and to render to each other such assistance as may reasonably be required in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after order to ensure the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party proper and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount adequate defense of any such loss previously paid by the Indemnifying Party) to the Indemnified Third Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaim.
(f) Each Indemnified Party The Seller's Representative and his Deputies (collectively the "Representatives") shall use reasonable efforts to collect be free from any amounts available under insurance coverageliability when acting in good faith in accordance with any written advice or opinion received from legal counsel, an independent certified public accountant or other expert rendering advice or an opinion within the area of his or her expertise. The Representatives shall not be liable for any mistakes of fact or errors of judgment, or from any other Person alleged to be responsible, for any Damages payable acts or omissions of any kind unless caused by willful misconduct or gross negligence of the Representatives with regard to their duties under this Agreement. The Stockholders and Buyer hereby covenant not to sue ▇▇▇ Representatives as a result of any and all loss, damage, liability or expense that the Representatives may sustain or incur as a result of any action taken in good faith hereunder and not due to the Representatives' gross negligence or willful misconduct. The covenant not to sue ▇▇ this Section 12.0211.3(f) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Recapitalization Agreement (Knowles Electronics LLC)
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Borg Warner Security Corp)
Procedures. (a) The party seeking indemnification under Section 12.02 If any ▇▇▇▇▇▇▇▇ Indemnitee or Tandy Indemnitee (the each, an “Indemnified Party”) agrees believes that it has suffered or incurred or will suffer or incur any Losses for which it is entitled to give prompt notice to indemnification under this Article IX, such Indemnified Party shall so notify the party against Party or Parties from whom indemnity indemnification is sought being claimed (the “Indemnifying Party”) with reasonable promptness and reasonable particularity in light of the assertion of circumstances then existing. If any claim, action at law or the commencement of any suit, action suit in equity is instituted by or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information against a third party with respect thereto that the Indemnifying to which any Indemnified Party may reasonably request. The failure intends to so claim any Losses, such Indemnified Party shall promptly notify the Indemnifying Party of such action or suit. The failure of an Indemnified Party to give any notice required by this Section shall not relieve the Indemnifying Party affect any of its obligations hereunder, such Party’s rights under this Article IX or otherwise except and to the extent that such failure shall have adversely prejudiced is actually prejudicial to the Indemnifying rights or obligations of the Indemnified Party.
(b) Upon being given notice of any third party claim against an Indemnified Party, the Indemnifying Party shall have the right upon written notice to the Indemnified Party to assume the defense and conduct and control, through counsel of its choosing, of such third party claim, action or suit contemplated by Section 9.2(b) or 9.3(b), as applicable. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of the third party claim and any appeal arising therefrom. Upon assuming the defense of a third party claim, the Indemnified Party may compromise or settle the same, provided either that (i) the settlement shall include as an unconditional term thereof the giving of a complete release from liability with respect to such action or suit to the Indemnified Party or (ii) the Indemnifying Party shall give the Indemnified Party advance notice of any proposed compromise or settlement and the Indemnified Party shall have consented in advance in writing to the proposed compromise or settlement (which consent shall not be unreasonably withheld). The Indemnifying Party shall be entitled permit the Indemnified Party to participate in the defense of any Claim asserted such action or suit through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party. If the Indemnifying Party undertakes to conduct and control the conduct and settlement of such action or suit, the Indemnifying Party shall not thereby permit to exist any Encumbrance upon any asset of the Indemnified Party as a result of the claim being indemnified. The Indemnifying Party shall permit the Indemnified Party to participate in any settlement negotiations through counsel chosen by the Indemnified Party (at its own cost and expense). If an Indemnifying Party fails to assume the defense of a third party claim within fifteen (“Third 15) calendar days after receipt of the notice of the third party claim as provided above, the Indemnified Party Claim”) and, subject against which such third party claim has been asserted will upon delivering notice to such effect to the limitations set forth in this SectionIndemnifying Party have the right to undertake, shall be entitled to control at the defense Indemnified Party’s cost, risk and expense, the defense, compromise or settlement of such Third Party Claim on behalf of and appoint lead counsel for the account and risk of Indemnifying Parties; provided, however, that such defense, in each case at its expense; provided that Limited Brands third party claim shall not be compromised or its Affiliates shall control settled without the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release ). If the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in assumes the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each third party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that lossclaim, the Indemnified Party must notify will keep the Indemnifying Party and pay to the Indemnifying Party the extent reasonably informed of the value of the benefit (or, if less, the amount progress of any such loss previously paid by the Indemnifying Party) defense, compromise or settlement of any action effected pursuant to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedand in accordance herewith.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phoenix Footwear Group Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 10.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0310.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0210.02.
Appears in 1 contract
Sources: Asset Purchase Agreement (Perry Ellis International Inc)
Procedures. (a) The party Parent Indemnitee seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to shall give prompt notice to the party against whom indemnity is sought Adenyo (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) Claim in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve diminish the Indemnifying Party of its obligations right to set-off against the Earn-out Amount hereunder, except to the extent such failure shall have the Indemnifying Party demonstrates that the defense of the Claim is adversely prejudiced by the Indemnifying Party’s failure to give that notice.
(b) The If an Indemnified Party gives notice to the Indemnifying Party of any Claim asserted by any third party (“Third-Party Claim”), then the Indemnifying Party shall be entitled to participate in the defense of any the Third-Party Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided extent that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
it wishes (c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, unless (i) the Indemnifying Party shall obtain is also a Person against whom the prior written consent of Third-Party Claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend the Third-Party Claim and provide indemnification with respect to the Third-Party Claim), to assume the defense of the Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of the Third-Party Claim (and subject to the conditions set forth in the preceding sentence), the Indemnifying Party shall not, so long as it diligently conducts the defense, be liable to the Indemnified Party under this Article 10 for any fees of other counsel or any other expenses with respect to the defense of the Third-Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of the Third-Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third-Party Claim, then (A) such assumption will conclusively establish for purposes of this Article 10 that the claims made in that Third-Party Claim are within the scope of and subject to indemnification, and (B) no compromise or settlement of the Third-Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s written consent unless (1) there is no finding or admission of any violation of Applicable Law or any violation of the rights of any Person; (2) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party (or, in connection with such settlement, the Indemnified Party will be entitled to set off the full amount of the Damages against the Earn-out Amount, in which case such consent shall not be unreasonably withheld, conditioned or delayed), and (3) before entering into the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third the Third-Party Claims effected without its written consent.
(c) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Third-Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Article 10, then the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle the Third-Party Claim, if but the Indemnifying Party will not be bound by any determination of any Third-Party Claim so defended for the purposes of this Article 10 or any compromise or settlement does effected without its prior written consent (which may not release be unreasonably withheld, delayed or conditioned).
(d) With respect to any Third-Party Claim subject to indemnification under this Article 10: (i) both the Indemnified Party from all liabilities and obligations with respect to such Third the Indemnifying Party, as the case may be, shall keep the other Person reasonably informed of the status of the Third-Party Claim or and any related proceedings at all stages thereof where the settlement imposes injunctive or other equitable relief against the Indemnified Party Person is not represented by its own counsel, and (ii) the Indemnified Party shall be entitled Parties agree to participate render to each other assistance as they may reasonably require of each other and to cooperate in good faith with each other to ensure the proper and adequate defense of such Third any Third-Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithClaim.
(e) Each Indemnified With respect to any Third-Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks Claim subject to indemnification under this AgreementArticle 10, the parties agree to cooperate in a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement In connection therewith, each party agrees that: (i) it will use reasonable efforts, in respect of that lossany Third-Party Claim in which it has assumed or participated in the defense, to avoid production of confidential information (consistent with applicable law and rules of procedure), and (ii) all communications between any party hereto and counsel responsible for or participating in the Indemnified defense of any Third-Party must notify the Indemnifying Party and pay Claim shall, to the Indemnifying Party the extent of the value of the benefit (orpossible, if less, the amount of be made so as to preserve any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedapplicable attorney-client or work-product privilege.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party Any Person seeking indemnification under Section 12.02 this Article 11 (the “Indemnified Party”) agrees to shall give prompt written notice to the party against Person from whom indemnity indemnification is to be sought (the “Indemnifying Party”) of the assertion of any claim, claim or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted Action by any third party (“Third Third-Party Claim”); provided, that the failure of the Indemnified Party to give notice as provided in this Section 11.03(a) shall not relieve any Indemnifying Party of its obligations under Section 11.02, except to the extent that such failure actually prejudices the rights of any such Indemnifying Party. Such notice shall set forth in reasonable detail the Third-Party Claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnified Party relating to the Third-Party Claim and the Indemnified Party shall provide the Indemnifying Party with such other information with respect to any such Third-Party Claim reasonably requested by the Indemnifying Party. The Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this SectionSection 11.03, shall be entitled to assume control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint defend against, negotiate, settle (subject to clause (b)) or otherwise deal with such Third-Party Claim. If the lead counsel in connection withIndemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third-Party Claim, then the Retained Litigation.
Indemnified Party may defend against, negotiate, settle (csubject to clause (b)) or otherwise deal with such Third-Party Claim. If the Indemnifying Party shall assume the control defense of any Third-Party Claim, then the Indemnified Party may participate, at his or its own expense, in the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Third-Party Claim; provided, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to that such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the any such defense of such Third Party Claim and to employ with separate counsel at the expense of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify and the Indemnifying Party and pay to that would make such separate representation advisable; provided, further, that the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any such loss previously paid by the Indemnifying Party) to the Indemnified Third-Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaim.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Procedures. (a) The party seeking In order for an Indemnified Party to be entitled to any indemnification provided for under Section 12.02 this Agreement in respect of, arising out of or involving any claim (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (a “Claim”) in respect of which indemnity may be sought under by an Indemnified Party such Section and will provide Indemnified Party must notify the Indemnifying Party in writing (and in reasonable detail) of such information with respect thereto Claim within (i) in the case of a Third Party Claim, five (5) Business Days or (ii) in the case of a claim (other than a Third Party Claim), promptly, after knowledge by such Indemnified Party of such Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party may reasonably request. The shall have been materially prejudiced as a result of such failure to so notify (except that the Indemnifying Party shall not relieve be liable for any additional Losses resulting from the Indemnified Party’s failure to give such notice). Thereafter, the Indemnified Party shall give the Indemnifying Party of its obligations hereunder, except reasonable access to the extent books, records and assets of the Indemnified Party which evidence or support such failure shall have adversely prejudiced Claim or the Indemnifying Partyact, omission or occurrence giving rise to such Claim and the right, upon prior notice, to interview any employee, agent or other representative of the Indemnified Party related thereto.
(b) The If an Indemnified Party is entitled to indemnification hereunder because of a Claim asserted by a claimant other than an Indemnified Party (a “Third Party Claim”), the Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) thereof and, subject if it so chooses in its sole discretion, to the limitations set forth in this Section, shall be entitled to control assume the defense of thereof with counsel selected by the Indemnifying Party; provided; however that if the defendants in any such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against include the Indemnified Party and (ii) there exists any actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnified Party shall be entitled have the right to obtain, at the Indemnifying Party’s expense, one separate counsel to defend such actions on behalf of such Indemnified Party, in which case the Indemnified Party shall have the right to participate in the defense of such Third Party Claim (it being understood that the Indemnifying Party shall not have the right to control (but shall have the right to participate in) such defense if (i) such Third Party Claim is seeking as a significant component of their remedy an injunction, restraining order, declaratory relief or other non-monetary relief or (ii) the named parties to any such Proceeding (including any impleaded parties) include both an Indemnified Party and an Indemnifying Party and the former shall have been advised in writing by counsel (with a copy to the Indemnifying Party) that there are one or more legal or equitable defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party). Subject to the foregoing sentence, 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, at its own expense, separate from the counsel of its choice for employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such purposedefense. The Indemnifying Party shall be liable for the fees and expenses (payable out of such separate the Indemnity Escrow Funds) of one counsel employed by the Indemnified Party (which counsel shall be paid reasonably acceptable to the Indemnifying 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 applicable 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 reasonable access to the books, records and assets of the Indemnified Party which evidence or support such Claim or the act, omission or occurrence giving rise to such Claim and the right, upon prior notice, to interview any employee, agent or other representative of the Indemnified Party related thereto. 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. If the Indemnifying Party assumes 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 (i) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and does not result in any financial or other obligation of the Indemnified Party and (ii) fully and unconditionally releases the Indemnified Party in connection with such Third Party Claim. Subject to the immediately preceding sentence (which claims satisfying clause (i) and (ii) thereof shall not require the Indemnified Party’s consent), the Indemnifying Party shall not agree to any settlement, compromise or discharge of a Third Party Claim without the prior written consent of the Indemnified Party and provides for a full release of the Indemnified Party.
(dc) Each party shall cooperate, and cause their respective Affiliates Subject to cooperate, in the Indemnified Party’s right to assume the defense under Section 11.5(b), if any Indemnified Party intentionally prohibits, restricts or prosecution limits in any material manner or attempts to prohibit, restrict or limit in any material manner the ability of the Indemnifying Party to assume the defense of a Third Party Claim, then no Indemnifying Party shall have any obligation to any Indemnified Party with respect to such Third Party Claim pursuant to this Article XI or otherwise.
(d) If the Indemnifying Party disputes its liability with respect to any Claim (including and Third Party Claim), the Indemnifying Party and the Indemnified Party shall furnish or cause proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall, subject to Sections 12.9 and 12.10, be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested resolved by litigation in connection therewithan appropriate court of competent jurisdiction.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss The Sellers’ Representative shall act on behalf of the Sellers for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision purposes of this Agreement in respect Section 11.5 for all Claims (including all Third Party Claims) which are the subject of that loss, the Indemnified Party must notify the Indemnifying Party and pay indemnification hereunder pursuant to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedSection 11.1(a).
(f) Each Subject to Section 11.1(d), any indemnity payments owed by any individual Seller under this Article XI that are not satisfied from the Indemnity Escrow Funds shall be paid by the applicable Seller in immediately available funds within 10 Business Days after final determination and written request thereof by the Indemnified Party Party. All such indemnity payments shall use reasonable efforts be made to collect the accounts and in the manner specified in writing by the party entitled to such indemnity payments.
(g) In connection with this Article XI, each Seller hereby (i) waives any right of contribution or indemnification or similar right each may have against the Company Group (or its members) for any amounts available under insurance coveragepaid by the Seller hereunder, and (ii) waives any defense based on conduct of the Company Group (or from any other Person alleged its members) prior to be responsible, for any Damages payable under Section 12.02the Closing.
Appears in 1 contract
Procedures. (a) The In order for a party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt notice 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 (a “Third Party Claim”), such Indemnified Party must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Party”) in writing (and in reasonable detail) of the assertion Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of any claimnotice of the Third Party Claim; provided, or however, that failure to give such notification shall not affect the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide indemnification provided hereunder except to the extent the 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 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.
(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. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall be deemed to have accepted the corresponding obligation to defend and indemnify the Indemnified Party, and in such case, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party through counsel not employed by the Indemnifying Party in connection with the defense. 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 (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 to provide additional information and explanation of any material provided hereunder. So long as the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect thereto 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 assumes 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 reasonably requestrecommend and that 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 Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party under Section 8.2 or Section 8.3 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 with reasonable promptness to the Indemnifying Party and in any event prior to the expiration of the underlying representations and warranties, if applicable. The failure by any Indemnified Party so to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunderfrom any liability that it may have to such Indemnified Party under Section 8.2 or Section 8.3, except to the extent such failure shall have adversely prejudiced that the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted demonstrates that it has been prejudiced by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) failure. If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations disputes its liability with respect to such Third Party Claim or claim, the settlement imposes injunctive or other equitable relief against the Indemnified Indemnifying Party and (ii) the Indemnified Party shall be entitled proceed in good faith to participate in the defense negotiate a resolution of such Third Party Claim and to employ separate counsel of its choice for dispute and, if not resolved through negotiations, such purpose. The fees and expenses of such separate counsel dispute shall be paid resolved by the Indemnified Partylitigation in an appropriate court of competent jurisdiction.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The A party seeking indemnification under Section 12.02 pursuant to Sections 7.2 or 7.3 (the an “Indemnified Party”) agrees to shall give prompt notice to the party against from whom indemnity such indemnification is sought (the “Indemnifying Party”) of the assertion of any claimclaim or assessment, or the commencement of any action, suit, action audit or proceeding (“Claim”) proceeding, by a third party in respect of which indemnity may be sought under such Section hereunder (a “Third Party Claim”) and will provide give the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within 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. The failure Indemnifying Party shall have the right, exercisable by written notice (the “Notice”) to the Indemnified Party within thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of any Third Party Claim, to assume the defense of such Third Party Claim, using counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party. Should the Indemnifying Party so notify elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not relieve 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 shall fail to assume the defense of its obligations hereunderthe Third Party Claim within such thirty (30) day period, except to the extent such failure Indemnified Party shall have adversely prejudiced the right to undertake the defense of such Third Party Claim on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party elects to assume the defense of any such 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.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall be entitled in any event have the right to participate participate, at its own expense, in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control which the defense of, and appoint the lead counsel in connection with, the Retained Litigationother is defending.
(c) If the The Indemnifying Party Party, if it shall assume the control of have assumed the defense of any Third Party Claim in accordance with the provisions terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of this Section 12.03judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or settlement unless (i) the Indemnifying Third Party shall obtain Claim involves equitable or other non-monetary damages or (ii) in the prior reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party’s business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party (Party, which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party Whether or not the Indemnifying Party chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate, and cause their respective Affiliates to cooperate, cooperate in the defense or prosecution of any Third Party Claim thereof and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, and appeals as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay Such cooperation shall include access during normal business hours afforded to the Indemnifying Party the extent of the value of the benefit (orrecords and information which are reasonably relevant to such Third Party Claim, if less, the amount and making employees available on a mutually convenient basis to provide additional information and explanation of any such loss previously paid by material provided hereunder, and the Indemnifying Party) to Party shall reimburse the Indemnified Party of that mitigation (less the Indemnified Party’s for all its reasonable costs of mitigation) within two Business Days after the benefit is receivedout-of-pocket expenses in connection therewith.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valiant Health Care, Inc.)
Procedures. (a) The This Section 10.3 shall apply to Claims by a third party seeking indemnification under Section 12.02 (covered by this Article 10. In the “Indemnified Party”) agrees to give prompt notice to the event that an indemnified party against whom indemnity is sought (the “Indemnifying Party”) becomes aware of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto a third party Claim that the Indemnifying Party indemnified party reasonably believes may reasonably requestresult in a demand for indemnification pursuant to this Article 10, the indemnified party shall promptly notify the indemnifying party of such Claim. The failure to so notify the Indemnifying Party promptly give such notice shall not not, however, relieve the Indemnifying Party indemnifying party of its indemnification obligations hereunder, except to the extent such failure that the indemnifying party is actually prejudiced thereby. The indemnifying party shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party right, in its sole discretion and expense, to elect to defend, contest or otherwise protect against any such Claim with legal counsel of its own selection; provided, however, the indemnifying party shall be entitled not have the right to participate in defend or direct the defense of any such Claim asserted if the indemnifying party refuses to acknowledge fully the indemnifying party’s obligations under this Article 10 to the indemnified party (in the event any Damages are incurred by any third Buyer Parties) or contests, in whole or in part, such obligations, and further provided, the indemnifying party (“Third Party Claim”) and, subject shall not have the right to the limitations set forth in this Section, shall be entitled to control defend or direct the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, if: (i) the Indemnifying Party shall obtain third party asserting the prior written consent claim is a customer of the Indemnified Party Buyer or the Company; (which shall not be unreasonably withheld, conditioned or delayedii) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations an adverse judgment with respect to the Claim will establish a precedent materially adverse to the continuing business interests of the Buyer and/or the Company; (iii) there is a conflict of interest between the indemnifying party and the indemnified party in the conduct of such Third Party defense; or (iv) such Claim is criminal in nature, could reasonably be expected to lead to criminal proceedings, or the settlement imposes injunctive seeks an injunction or other equitable relief against the Indemnified Party indemnified party. The indemnified party shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all crossclaims or counterclaims it may have. The indemnified party shall, and shall cause its Affiliates (and their respective directors, officers, agents and employees), to at all times cooperate in all reasonable ways with, make their relevant files and records available for inspection and copying by, or otherwise render reasonable assistance to, the indemnifying party (i) in its defense of any action for which indemnity is sought under this Article 10, and (ii) its prosecution of any related claim, cross-complaint, counterclaim or right of subrogation. In the Indemnified Party shall be entitled event the indemnifying party fails to participate in timely defend, contest or otherwise protect against any such Claim or if the indemnified party has the right to retain the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by hereunder, the Indemnified Party.
(d) Each indemnified party shall cooperatehave the right, but not the obligation, to defend, contest, assert crossclaims or counterclaims or otherwise protect against the same at the indemnifying party’s expense. No Claim subject hereto may be settled unless the indemnified party and cause their respective Affiliates to cooperatethe indemnifying party consent thereto, in the defense or prosecution of any Third Party Claim and shall furnish or cause such consent not to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithunreasonably withheld.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dynamics Research Corp)
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled entitled, upon written notice to the Indemnified Party, to assume control the defense of such Third Party Claim and appoint lead counsel reasonably acceptable to the Indemnified Party for such defense, in each case at its the Indemnifying Party’s expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim without any payment or covenant by or applicable to the Indemnified Party or the Business or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith, provided that the costs and expenses of the Indemnified Party incurred in connection with providing such cooperation shall be borne by the Indemnifying Party.
(e) In the event any Indemnified Party should have a claim under Section 11.02 against any Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall deliver a notice specifying the nature of and basis for such claim, together with the amount or, if not then reasonably determinable, the estimated amount, determined in good faith, of the Damages arising from such claim (the “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that an Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within 30 days following the Indemnifying Party’s receipt of the Indemnity Notice, the Damages arising from the claim specified in such Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.02 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand following the final determination thereof. If the Indemnifying Party has timely disputed its liability with respect the such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within 30 days, such dispute shall be judicially adjudicated in accordance with Section 13.05 and Section 13.06.
(f) Each Indemnified Party must mitigate in accordance with applicable Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(fg) Each Indemnified Party shall use its reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely materially prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must shall mitigate in accordance with applicable Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s 's reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kendle International Inc)
Procedures. (a) The party Any Person seeking indemnification under this Section 12.02 5 (the “Indemnified PartyPerson”) agrees to shall give prompt notice to the party against whom indemnity is sought (the “Indemnifying PartyPerson”) of the assertion of any claim, or Third Party Claim; provided that no delay on the commencement part of any suit, action or proceeding (“Claim”) the Indemnified Person in respect of which indemnity may be sought under such Section and will provide notifying the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party Person shall not relieve the Indemnifying Party Person of its obligations any Liability or obligation hereunder, except to the extent such failure shall have adversely prejudiced that the Indemnifying PartyPerson has been irreparably prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject If an Indemnified Person gives notice to the limitations set forth in this Section, shall be entitled Indemnifying Person pursuant to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(cSection 5.3(a) If the Indemnifying Party shall assume the control of the defense assertion of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such a Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party Indemnifying Person shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes (unless (i) the Indemnifying Person is also a Person against whom the Third Party Claim is made and the Indemnified Person determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Person fails to employ separate counsel provide reasonable assurance to the Indemnified Person of its choice for financial capacity to defend such purpose. The fees Third Party Claim and expenses provide indemnification with respect to such Third Party Claim), to assume the defense of such separate Third Party Claim with counsel shall satisfactory to the Indemnified Person. If the Indemnifying Person assumes the defense of a Third Party Claim, (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be paid effected by the Indemnifying Person without the Indemnified Party.
Person’s written consent unless (dA) Each party there is no finding or admission of any violation of Law or any violation of the rights of any Person; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (C) the Indemnified Person shall cooperate, and cause their respective Affiliates have no liability with respect to cooperate, in any compromise or settlement of such Third Party Claims effected without its written consent. If notice is given to an Indemnifying Person of the defense or prosecution assertion of any Third Party Claim and shall furnish the Indemnifying Person does not, within ten (10) days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of such Third Party Claim, the Indemnifying Person will be bound by any determination made in such Third Party Claim or cause any compromise or settlement effected by the Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to be furnished indemnification under this Agreement, the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to defend, compromise or settle such recordsThird Party Claim.
(d) Notwithstanding the provisions of Section 6.2, information Seller hereby consents to the nonexclusive jurisdiction of any court in which a Proceeding in respect of a Third Party Claim is brought against any member of the Purchaser Group for purposes of any claim that a member of the Purchaser Group may have under this Agreement with respect to such Proceeding or the matters alleged therein and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as agree that process may be reasonably requested served on Seller with respect to such a claim anywhere in connection therewiththe world.
(e) Each Indemnified With respect to any Third Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks Claim subject to indemnification under this Agreement. If such Section 5: (i) both the Indemnified Party mitigates its loss after Person and the Indemnifying Party has paid Person, as the Indemnified Party under any indemnification provision of this Agreement in respect of that losscase may be, shall keep the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent other Person fully informed of the value status of such Third Party Claim and any related Proceedings at all stages thereof where such Person is not represented by its own counsel, and (ii) the benefit parties agree (or, if less, each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the amount proper and adequate defense of any such loss previously paid by the Indemnifying Party) to the Indemnified Third Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedClaim.
(f) Each Indemnified With respect to any Third Party shall Claim subject to indemnification under this Section 5, the parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each party agrees that: (i) it will use reasonable efforts its best efforts, in respect of any Third Party Claim in which it has assumed or participated in the defense, to collect avoid production of confidential information (consistent with applicable Law and rules of procedure), and (ii) all communications between any amounts available under insurance coverageparty hereto and counsel responsible for or participating in the defense of any Third Party Claim shall, to the extent possible, be made so as to preserve any applicable attorney-client or from any other Person alleged to be responsible, work-product privilege.
(g) A claim for indemnification for any Damages payable under Section 12.02matter not involving a Third Party Claim may be asserted by notice to the party from whom indemnification is sought and shall be paid promptly after such notice.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Florida Gaming Corp)
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”"CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced affected the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”"THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section, shall be entitled to assume the control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned delayed or delayedconditioned) before entering into any settlement of such Third Party Claim, but only if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party Party, and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party. The Indemnifying Party shall have no indemnification obligations with respect to any Third Party Claim that shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. The Indemnified Party shall keep the Indemnifying Party fully informed of the defense of any Third Party Claim conducted by such Indemnified Party.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Delta Air Lines Inc /De/)
Procedures. (a) The A party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the assertion of any claimThird Party Claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party with the amount or the estimated amount of damages sought thereunder to the extent then ascertainable, any other remedy sought thereunder, any relevant time constraints relating thereto, a reasonably detailed explanation of the events giving rise to such Third Party Claim and any other material details pertaining thereto, in each case, to the extent such information is reasonably available to the Indemnified Party. The failure to deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) (x) If the Indemnifying Party is any Seller or ▇▇▇▇▇▇, in the event the Losses arising from a Third Party Claim are not reasonably likely to exceed the Sellers’ or ▇▇▇▇▇▇’▇ maximum indemnification obligations under this Agreement, or (y) if the Indemnifying Party is Buyer, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the out-of-pocket fees and expenses of counsel retained by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third 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 the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified 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 (1) involves a finding or admission of wrongdoing, (2) 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 or (3) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VII except to the extent that the Indemnifying Party is materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of its obligations hereunder, except the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Escrow Agent (to the extent such failure shall of any amounts then held in the Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have adversely prejudiced been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses.
(be) The Indemnifying Party shall not be entitled to participate in the defense of require that any Claim asserted by action be made or brought against any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands other Person before action is brought or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief claim is made against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid it hereunder by the Indemnified Party.
(df) Each party shall cooperateNotwithstanding the provisions of Section 8.9, and cause their respective Affiliates each Indemnifying Party hereby consents to cooperate, in the defense or prosecution nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as agrees that process may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the served on each Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in with respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedclaim anywhere.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 6 (the “Indemnified Party”) agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “Indemnifying Party”) of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The ’s ability to defend such action and provided further that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Registration Rights Agreement (Solomon Technologies Inc)
Procedures. (a) The party Any Indemnified Party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to this Article XI shall give prompt written notice to the party persons against whom indemnity indemnification is sought (the “Indemnifying Party”) of the assertion of any claim, claim by a third party or the commencement discovery of any suit, action fact upon which the Indemnified Party intends to base a claim under this Article XI. The delay or proceeding (“Claim”) failure of any Indemnified Party to provide notice hereunder shall not in respect of which indemnity may be sought under such Section and will provide any way limit its indemnification rights hereunder except to the Indemnifying Party such information with respect thereto extent that the Indemnifying Party may reasonably requestdemonstrates that its ability to defend or resolve such claim is actually and materially prejudiced thereby. The failure to so notify Any such notice shall describe the Indemnifying Party facts and circumstances upon which the asserted claim for indemnification is based and shall include the amount of the indemnifiable Losses (or, if such amount is not relieve then determined, a good faith estimate thereof) and the Indemnifying Party basis for the determination of its obligations hereunder, except to the extent amount of such failure shall have adversely prejudiced the Indemnifying PartyLosses.
(b) With respect to a third-party claim:
(i) The Indemnifying Party shall be entitled to may, if applicable, and at the request of the Indemnified Party shall, participate in and control the defense of any Claim asserted by any third third-party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case claim at its own expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) . If the Indemnifying Party shall elects to assume the control of the defense (whether or not obligated to) of any Third such claim, the Indemnified Party Claim may participate in accordance with such defense, but in such case the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent expenses of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under shall fail to defend a third-party claim or, if after commencing or undertaking any indemnification provision of this Agreement in respect of that losssuch defense, shall fail to prosecute or shall withdraw from such defense, the Indemnified Party must notify shall have the right to undertake the defense thereof at the Indemnifying Party’s expense. Notwithstanding the foregoing, if the Indemnifying Party assumes the defense of a third-party claim and pay if the Indemnified Party later determines in good faith that the third-party claim is (x) likely to materially adversely affect it or its business in a manner that may not be adequately compensated by money damages or (y) may expose the Indemnifying Indemnified Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid to potential obligations or Losses that may not be fully satisfied by the Indemnifying Party) to , then the Indemnified Party of that mitigation (less may, by written notice to the Indemnifying Party, assume the exclusive right to defend, compromise, or settle such claim. If the Indemnified Party shall so assume the exclusive right to defend, compromise, or settle such claim, all attorneys’ fees and other expenses incurred by the Indemnified Party in the defense, compromise or settlement of such claim shall be at the Indemnifying Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedexpense.
(fii) Each The party controlling the defense of any third-party suit, action or proceeding shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto.
(iii) The Indemnifying Party shall not settle any third-party claim without the consent (which consent shall not be unreasonably withheld or delayed) of the Indemnified Party if any relief, other than the payment of money damages which the Indemnifying Party shall use reasonable efforts be obligated to collect any amounts available under insurance coveragepay in full, would be granted against the Indemnified Party or from any other Person alleged its Affiliates by such settlement or if the Indemnified Party would be liable to be responsible, the third party for any Damages payable under Section 12.02portion of such settlement.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 In order for a Buyer Indemnity or a Seller Indemnity (the “Indemnified Party”) agrees to give prompt be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of written notice of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Third Party Claim and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not relieve be entitled to assume the Indemnifying defense of any Third Party of its obligations hereunderClaim for equitable or injunctive relief or any claim that would impose criminal liability or damages, except to and the extent such failure Indemnified Party shall have adversely prejudiced the right to defend, at the expense of the Indemnifying Party.
(b) , any such Third Party Claim. The Indemnifying Party shall be entitled liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to participate in assume the defense of any Claim asserted by any third party (“Third thereof. If the Indemnifying Party Claim”) and, subject does not expressly elect to the limitations set forth in this Section, shall be entitled to control assume the defense of such Third Party Claim within the time period and appoint lead counsel for such defenseotherwise in accordance with the first sentence of this Section 8.4(b), in each case at its expense; provided that Limited Brands or its Affiliates the Indemnified Party shall control have the sole right to assume the defense of, of and appoint the lead counsel in connection with, the Retained Litigation.
(c) to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall assume have the control right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third 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 the defense of any Third Party Claim in accordance Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the provisions Indemnifying Party in such defense and make available to the Indemnifying 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. If the Indemnifying Party assumes the defense of this Section 12.03any Third Party Claim, (i) the Indemnifying Party shall obtain not, without the prior written consent of the Indemnified 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) involves a finding or admission of wrongdoing by the Indemnified Party or any of its Representatives, (ii) 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, or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control any claim relating to Taxes of the Indemnified Party for any period ending after the Closing Date provided that, in the case of any Straddle Period for which a claim could result in an obligation of the Seller to indemnify for Taxes under this Agreement, the Buyer shall not be entitled to settle such claim without the prior written consent of the Seller (not to be unreasonably withheld), and the Indemnified Party shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability of the Indemnified Party for Taxes for any period after the Closing Date, without the prior written consent of the Indemnified Party (which shall not to be unreasonably withheld, conditioned withheld or delayed) before entering into ). If the Indemnified Party assumes the defense of any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations shall not, without the prior written consent of the Indemnifying 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) involves a finding or admission of wrongdoing by the settlement Indemnifying Party or any of its Representatives, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnifying Party from all liability in respect of such Third Party Claim, or (iii) imposes injunctive equitable remedies or other equitable relief against any obligation, unless the Indemnified Party agrees in writing to release the Indemnifying Party from all liability and obligation with respect thereto and waive its right for indemnification, compensation or reimbursement pursuant to Article VIII in connection thereto.
(iic) In the event that any Indemnified Party should have a claim against any Indemnifying Party hereunder (whether or not involves a Third Party Claim), the Indemnified Party shall be entitled to participate deliver a Claim Notice (as defined in the defense Escrow Agreement) with respect to such claim with reasonable promptness to the Indemnifying Party in accordance with the procedures set forth in the Escrow Agreement (to the extent there are any funds available in the Indemnity Escrow Fund) or Schedule D of this Agreement (to the extent there are no available funds in the Indemnity Escrow Fund and the nature of the claim is such Third that is not subject to the limitations set forth in Section 8.5(a) and is not limited to the funds available in the Indemnity Escrow Fund). The failure to provide such notice, however, shall not release the Indemnifying Party Claim and to employ separate counsel from any of its choice for obligations under this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyfailure.
(d) Each party shall cooperate, and cause their respective Affiliates If either the Seller or the Buyer fails to cooperate, in the defense indemnify any Buyer Indemnitee or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appealsSeller Indemnitee, as may be reasonably requested applicable, for any Losses to which such Buyer Indemnitee or Seller Indemnitee in connection therewithentitled pursuant to this Article VIII (following compliance with the procedures set forth herein), then such Losses shall accrue interest from the date such Losses are due pursuant to the terms of this Article VIII, at the rate of interest from time to time announced publicly by The Wall Street Journal as its prime rate, calculated on the basis of a year of 365 days and the number of days elapsed.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after Notwithstanding the provisions of Section 10.10, each Indemnifying Party has paid hereby consents to the Indemnified Party under nonexclusive jurisdiction of any indemnification provision of this Agreement court in which an Action in respect of that loss, the a Third Party Claim is brought against any Indemnified Party must notify for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party and pay with respect to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedclaim anywhere.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification Other than with respect to the matters listed on Section 2.7(k) of the Seller Disclosure Schedules for which notice hereunder is not required, a Person that may be entitled to be indemnified under Section 12.02 this Agreement (the “Indemnified Party”) agrees to give prompt notice to shall promptly notify the party against whom indemnity is sought or parties liable for such indemnification (the “Indemnifying Party”) of the assertion in writing of any claimpending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, or the commencement of any suit, action or proceeding (such claim being a “Third Party Claim”), describing in reasonable detail (taking into account the information then available to the Indemnified Party) in the facts and circumstances with respect to the subject matter of which indemnity may be sought under such Section and will claim or demand; provided, that the failure to provide such notice shall not release the Indemnifying Party such information with respect thereto from any of its obligations under this Article IX except to the extent that the Indemnifying Party may reasonably request. The is materially prejudiced by such failure (as determined by a court of competent jurisdiction), it being agreed that notices for claims in respect of a breach of a covenant or agreement must be delivered prior to so notify the expiration of any applicable survival period specified in Section 9.1 for such covenant or agreement.
(b) Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to Section 9.2(a) or Section 9.3, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party); provided that the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in assume the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to and control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if (i) the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim relates to or arises in connection with any criminal Action or (ii) the settlement imposes injunctive Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates; provided, further, that if the Indemnifying Party assumes the defense and (ii) control of such Third Party Claim the Indemnifying Party shall allow the Indemnified Party shall be entitled a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and to employ separate counsel of at its choice for such purpose. The own expense except that the Indemnifying Party shall pay the fees and expenses of such separate counsel shall be paid if representation of both the Indemnifying Party and the Indemnified Party by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in same counsel would create a conflict of interest. If the Indemnifying Party does not assume the defense or prosecution and control of any Third Party Claim pursuant to this Section 9.4(b), the Indemnified Party shall be entitled to assume and control such defense and the Indemnifying Party shall pay the fees and expenses of counsel retained by the Indemnified Party, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. Purchaser or Seller, as the case may be, shall, and shall furnish or cause to be furnished such each of its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and records, information personnel and testimony, and attend such conferences, discovery proceedings, hearings, trials or appealswitnesses, as may be reasonably requested in connection therewith.
(e) Each Indemnified appropriate for any defense of such Third Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this AgreementClaim. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided, that such settlement or judgment does not involve any injunctive or other equitable relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates and expressly unconditionally releases the Indemnified Party under and its Affiliates from all Liabilities with respect to such Third Party Claim. No Indemnified Party will consent to the entry of any indemnification provision judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written consent of this Agreement in respect the Indemnifying Party.
(c) Upon receipt of a notice of a claim for indemnity from an Indemnified Party pursuant to Section 9.2(a) or Section 9.3 that lossdoes not involve a Third Party Claim, the Indemnifying Party shall use reasonable best efforts to notify the Indemnified Party must notify within 30 days following the receipt of such notice whether the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) disputes its indemnity obligation to the Indemnified Party of for any Covered Losses with respect to such claim, provided that mitigation (less any failure to give such notice shall not limit the Indemnified Indemnifying Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available rights under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.this Article
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Procedures. (a) The party Party seeking indemnification under Section 12.02 ARTICLE VIII (the “Indemnified Party”) agrees to give prompt notice of its Claim to the party against whom indemnity is sought (the “Indemnifying Party”) ), stating in reasonable detail the nature of the assertion inaccuracy or breach or other claim (including identification of any claimthe provisions of this Agreement alleged to have been breached or inaccurate or under which a claim is being made), or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty or to the extent the survival periods stated herein have lapsed.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) at its expense, and, subject to the limitations set forth in this SectionSection 7.3, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands the Indemnifying Party shall not be entitled to control any Third Party Claim (i) that involves injunctive relief or its Affiliates shall control criminal liability; or (ii) that could have a material impact on the defense of, and appoint the lead counsel in connection with, the Retained LitigationCompanies’ future business or prospects.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.037.3, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Membership Interest Exchange Agreement (Muscle Maker, Inc.)
Procedures. (a) The In order for a party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by any third Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice (a “Claim Notice”) thereof to the party against whom indemnity is sought Seller or the Buyer, as applicable (the “Indemnifying Party”) ), with reasonable promptness after receipt by such Indemnified Party of written notice of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Third Party Claim and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. The failure Indemnifying Party shall have 15 days after receipt of the Claim Notice (the “Notice Period”) to so notify the Indemnified Party that it desires to defend the Indemnifying Party against such Third Party Claim.
(b) In the event that the Indemnifying Party, within the Notice Period, acknowledges in writing its obligation to indemnify the Indemnified Party against a Third Party Claim that is exclusively for civil monetary damages at law, (i) the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense, with counsel of its choosing, at its expense (which expenses shall not be applied against any indemnity limitation herein); provided, however, that notwithstanding the foregoing, the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in assume the defense of any Third Party Claim asserted by (A) for equitable or injunctive relief or that would impose criminal liability or criminal damages, (B) involving a conflict of interest between the Indemnifying Party (or any third party of its Affiliates) and the Indemnified Party (“or any of its Affiliates), or (C) where the amount of Losses sought exceed the Indemnifying Party’s obligations under this Article IX, (ii) the Indemnifying Party shall use its commercially reasonable efforts to defend diligently such Third Party Claim”, and (iii) andthe Indemnified Party, subject prior to the limitations set forth period in this Section, shall be entitled to control which the Indemnifying Party assumes the defense of such matter, may take such reasonable actions to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Party’s rights to defense and indemnification pursuant to this Agreement, but with such actions not being determinative of the amount of any Losses. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim without the prior written consent of the Indemnified Party if the settlement, compromise or judgment (i) involves a finding or admission of wrongdoing, (ii) 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 and appoint lead counsel or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control which the defense of, and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party will be fully indemnified hereunder.
(c) If the Indemnifying Party shall assume (i) does not elect to defend the control Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of any a Third Party Claim, fails to take commercially reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party shall have the right but not the obligation to assume such defense and shall have the sole power to direct and control such defense, with counsel of its choosing, at the expense of the Indemnifying Party; it being understood that the Indemnified Party’s right to indemnification for a Third Party Claim in accordance with shall not be adversely affected by assuming the provisions defense of this Section 12.03, (i) the Indemnifying such Third Party Claim. The Indemnified Party shall obtain not settle a Third Party Claim without the prior written consent of the Indemnified Party (Indemnifying Party, which consent shall not be unreasonably withheld, conditioned delayed or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyconditioned.
(d) Each party The Indemnifying Party and the Indemnified Party shall cooperatecooperate in the conduct of the defense of a Third Party Claim, including by providing reasonable access to each other’s relevant business records and other documents, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithemployees.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the The Indemnifying Party has paid and the Indemnified Party under shall use commercially reasonable efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any indemnification provision of this Agreement in respect of that loss, the Indemnified party to a Third Party must notify the Indemnifying Party and pay Claim to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of be made so as to preserve any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedapplicable attorney-client or work-product privileges.
(f) Each In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim, the Indemnified Party shall use deliver notice of such claim with reasonable efforts promptness to collect any amounts available under insurance coveragethe Indemnifying Party; provided, or however, that the failure to provide such notice shall not release the Indemnifying Party from any other Person alleged of its obligations under this Article IX except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(g) Notwithstanding the foregoing, any payment the Seller is obligated to make to any Indemnified Party pursuant to this Article IX shall be responsiblepaid first by release of funds to such Indemnified Party from the Escrow Account by the Escrow Agent pursuant to, for and in accordance with, the Escrow Agreement. To the extent the Escrow Amount is fully extinguished or insufficient to pay any Damages payable under Section 12.02remaining sums due, then the Seller shall be required to pay to the Indemnified Parties all of such additional sums due or claimed on demand, by wire transfer of immediately available funds.
Appears in 1 contract
Procedures. The Parties’ respective obligations in this Section 9 (Third-Party Claims) are conditioned on:
(a) The party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide Parties giving the Indemnifying Party such information prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim; and (c) the relevant Indemnified Parties providing assistance in connection with respect thereto that the defense and settlement of the Claim, as the Indemnifying Party may reasonably request. The failure Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to so notify any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party shall not relieve agreed to pay to any third party in settlement of any Claims arising under this Section 9 (Third-Party Claims) and settled by the Indemnifying Party of or with its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) approval. The Indemnifying Party shall be entitled not, without the relevant applicable Indemnified Parties’ prior written consent, agree to participate in any settlement on behalf of such Indemnified Parties which includes either the defense obligation to pay any amounts, or any admissions of liability, whether civil or criminal, on the part of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified PartyParties.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Master Service Agreement
Procedures. (a) The party seeking claiming indemnification under pursuant to this Section 12.02 8 (the “"Indemnified Party”") agrees to give prompt notice to shall promptly notify the party against whom indemnity is sought providing indemnification pursuant to this Section 8 (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect such claim of which indemnity may be sought under such Section it becomes aware and will shall: (i) at the Indemnifying Party’s expense, provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such information with respect thereto that claim, and (ii) at the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunderIndemnified Party’s expense, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third such claim. The Indemnifying Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled permitted to solely control the defense of any such Third Party Claim claim or action and appoint lead counsel all negotiations for such defenseits settlement or compromise; provided, in each case at its expense; provided however, that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) no settlement or compromise affecting the Indemnifying financial or legal obligations of any Indemnified Party shall obtain the be entered into or agreed to without such Indemnified Party’s prior written consent of the Indemnified Party (approval, which approval shall not be unreasonably withheld, conditioned unless such settlement contains a release by the claimant or delayed) before entering into any settlement the plaintiff of such Third Party ClaimIndemnified Party, if the settlement does not release the Indemnified Party its Affiliates, officers, directors, employees, representatives, and agents from all liabilities and obligations with liability in respect to of such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party action and (ii) the such Indemnified Party shall be entitled has the right to participate in the defense of such Third Party Claim and to employ separate counsel of participate, at its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperateown expense, in the defense or prosecution and/or settlement of any Third Party Claim and shall furnish such claim or cause action in order to be furnished such recordsprotect its own interests, information and testimonyprovided, and attend such conferenceshowever, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which that such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after shall not enter into or agree to any settlement or compromise affecting the financial or legal obligations of any Indemnifying Party has paid without such Indemnifying Party's prior written approval, which approval shall not be unreasonably withheld, unless such settlement contains a release by the Indemnified Party under any indemnification provision claimant or the plaintiff of this Agreement such Indemnifying Party, and its officers, directors, employees, representatives, and agents from liability in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedclaim or action.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: License Agreement (AtheroNova Inc.)
Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 4.7 (the “"Indemnified Party”") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “"Indemnifying Party”") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The 's ability to defend such action and provided further, that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest between the Indemnifying and indemnified Parties or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Axys Pharmecueticals Inc)
Procedures. (a) The party seeking In the event of any Third Party Claim for indemnification under Section 12.02 (the “Indemnified Party”) agrees to terms of SECTION 10.1 or 10.2, Indemnitee shall give prompt written notice of such Third Party Claim to the party against whom indemnity is sought (Company which may assume the “Indemnifying Party”) of the assertion of defense thereof, provided that any claim, delay or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party Company shall not relieve the Indemnifying Party Company of its obligations hereunderhereunder only to the extent, except if at all, that it is materially prejudiced by reason of such delay or failure. The Indemnitee shall have the right to approve any counsel selected by the Company and to approve the terms of any proposed settlement, such approval not to be unreasonably delayed or withheld (unless, in the case of approval of a proposed settlement, such settlement provides only, as to the Indemnitee, the payment of money damages actually paid by the Company and a complete release of the Indemnitee in respect of the Third Party Claim in question). Notwithstanding any of the foregoing to the contrary, the provisions of this ARTICLE X shall not be construed so as to provide for the indemnification of any Indemnitee for any liability to the extent (but only to the extent) that such failure indemnification would be in violation of applicable law or that such liability may not be waived, modified or limited under applicable law, but shall have adversely prejudiced be construed so as to effectuate the Indemnifying Partyprovisions of this ARTICLE X to the fullest extent permitted by law.
(b) The Indemnifying Party shall be entitled to participate in In the event that the Company undertakes the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject the Company will keep the Indemnitee advised as to the limitations set forth all material developments in this Section, shall be entitled to control the defense of connection with such Third Party Claim and appoint lead counsel for such defenseClaim, in each case at its expense; provided that Limited Brands including, but not limited to, promptly furnishing the Indemnitee with copies of all material documents filed or its Affiliates shall control the defense of, and appoint the lead counsel served in connection with, the Retained Litigationtherewith.
(c) If In the Indemnifying Party shall event that the Company fails to assume the control of the defense of any Third Party Claim in accordance with within ten Business Days after receiving written notice thereof, the Indemnitee shall have the right, subject to the Company's right to assume the defense pursuant to the provisions of this Section 12.03ARTICLE X, (i) to undertake the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withhelddefense, conditioned compromise or delayed) before entering into any settlement of such Third Party Claim for the account of the Company. Unless and until the Indemnitee assumes the defense of any Third Party Claim, the Company shall advance to the Indemnitee any of its reasonable attorneys' fees and other costs and expenses incurred in connection with the defense of any such action or proceeding. In addition, if the settlement does not release Indemnitee has notified the Indemnified Party from all liabilities and obligations with respect to Company of its determination that such Third Party Claim or may reasonably create a conflict between the settlement imposes injunctive or other equitable relief against positions of the Indemnified Party Indemnitee and (ii) the Indemnified Party Company, then separate counsel shall be entitled to participate in and conduct such defense and the defense of Company shall be liable for any reasonable legal or other expenses incurred by the Indemnitee in connection with such Third Party Claim and defense. Each Indemnitee shall agree in writing prior to employ separate counsel of its choice any such advancement that, in the event he or it receives any such advance, such Indemnitee shall reimburse the Company for such purpose. The fees fees, costs and expenses of such separate counsel to the extent that it shall be paid by the Indemnified Party.determined that he or it was not entitled to indemnification under this ARTICLE X.
(d) Each party In no event shall cooperate, and cause their respective Affiliates Company be required to cooperate, pay in the defense or prosecution of connection with any Third Party Claim for more than one firm of counsel (and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Partylocal counsel) to the Indemnified Party Purchasers, their Affiliates, directors, shareholders, officers, employees, agents and/or the legal representatives of that mitigation (less the Indemnified Party’s reasonable costs any of mitigation) within two Business Days after the benefit is receivedthem.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Securities Purchase Agreement (Airnet Communications Corp)
Procedures. (a) The party seeking indemnification under Section 12.02 14.2 (the “Indemnified Party”) agrees to shall give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section section and will provide the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this SectionSection 14.3(b), shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its own expense; provided that Limited Brands or its Affiliates shall control . Notwithstanding the defense of, and appoint the lead counsel in connection withforegoing, the Retained LitigationIndemnifying Party shall not have the right to assume control of such defense if the claim of which the Indemnifying Party seeks to assume control (i) to the extent such claim seeks non-monetary relief, (ii) involves criminal allegations, or (iii) involves a claim which would be reasonably like to result in Damages to the Indemnified Party in excess of the amount of Damages the Indemnified Party is entitled to recover from the Indemnifying Party hereunder.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0314.3, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party Party, and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party unless the Indemnifying Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party.
(d) Each party shall cooperate, and cause their its respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must shall use commercially reasonable efforts to mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must shall notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0214.2.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 In order for a Buyer Indemnified Party or Seller Indemnified Party (the “Indemnified PartyParty7.4(a)" ”) agrees to give prompt be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a Loss or a claim or demand made by a Third Party against the Indemnified Party (a “Third Party Claim7.4(a)" ”), such Indemnified Party shall deliver notice thereof to the party Party against whom indemnity is sought (the “Indemnifying PartyParty7.4(a)" ”) promptly after receipt by such Indemnified Party of written notice of the assertion Third Party Claim, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of any claim, or computation of the commencement amount of any suit, action or proceeding such claim (“Claim”if known) in respect of which indemnity may be sought under and such Section and will provide the Indemnifying Party such other information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify provide such notice, however, shall not release the Indemnifying Party shall not relieve the Indemnifying Party from any of its obligations hereunder, under this Article 7 except to the extent such failure shall have adversely prejudiced that the Indemnifying PartyParty is prejudiced by such failure.
(b) The Subject to Sections 5.2 and 5.3, the Indemnifying Party shall be entitled have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the limitations Indemnifying 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to compromise, settle or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent unless the Indemnifying Party withdraws from the defense of such Third Party Claim or unless a final non-appealable judgment of a court of competent jurisdiction from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnified Party for such Third Party Claim. If the Indemnified Party assumes the defense of any such claims or proceeding pursuant to this Section 7.4 and proposes to settle such claims or proceeding prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in the conduct of the settlement and/or to preclude such action by the Indemnified Party and assume or reassume the defense of such claims or proceeding. If a firm written offer is made to settle any Third Party Claim, the Indemnifying Party proposes to accept such settlement and the Indemnified Party refuses to consent to such settlement, then: (i) the Indemnifying Party shall be excused from, and the Indemnified Party shall be solely responsible for, all further defense of such Third Party Claim and all of the costs and expenses associated therewith and (ii) the maximum obligation of the Indemnifying Party to indemnify the Indemnified Party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the Indemnified Party on such Third Party Claim is greater than the amount of the proposed settlement.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder 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 to the Indemnifying Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 7 except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnifying Party shall have 30 days after receipt of notice of any claim pursuant to this Section 7.4(c) to (i) agree to the amount or method of determination set forth in this Sectionsuch claim and to pay such amount to such Indemnified Party or (ii) provide the Indemnified Party with notice (a “Dispute Notice7.4(c)" ”) that it disagrees with the amount or method of determination set forth in such claim. If the Indemnifying Party has timely delivered a Dispute Notice, the Indemnifying Party and the Indemnified Party shall, during a period 30 days from the Indemnified Party’s receipt of such Dispute Notice, negotiate in good faith to achieve of 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) Notwithstanding the foregoing, if a Third Party 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 Assumed Liabilities, and such claim for Taxes that are Excluded Taxes is not separable from such a claim for Taxes that are Assumed Liabilities, 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 or Buyer, as the case may be, the “Tax Controlling Party7.4(d)" ”), shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Party Claim, if a “Tax Claim7.4(d)" ”). In such case, the settlement does not release other party (the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii“Tax Non-Controlling Party7.4(d)" ”) the Indemnified Party shall be entitled to participate fully (at the Tax Non-Controlling Party’s sole cost and expense) in the conduct of such Tax Claim and the Tax Controlling Party shall not settle such Tax Claim without the consent of such Tax Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Third Party 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. Notwithstanding any other provision, Buyer shall be entitled to employ separate counsel control in all respects any proceedings relating to Taxes based on or related to income of Buyer or any of its choice for such purpose. The fees and expenses Affiliates and, except as provided above in this Section 7.4(d), all other proceedings relating to Taxes of such separate counsel shall be paid by the Indemnified PartyBuyer or any of its Affiliates.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Acceptance Corp /De/)
Procedures. (a) The party seeking indemnification under Section 12.02 10 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced affected the Indemnifying Party.
(b) . - The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to assume the control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) . - If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0310, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned delayed or delayedconditioned) before entering into any settlement of such Third Party Claim, but only if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or if the settlement imposes injunctive or other equitable relief against the Indemnified Party Party, and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) . The Indemnifying Party shall have no indemnification obligations with respect to any Third Party Claim that shall be settled by the Indemnified Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned. - Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each . The Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after shall keep the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent fully informed of the value of the benefit (or, if less, the amount defense of any Third Party Claim conducted by such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) . - Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0210.
Appears in 1 contract
Sources: Share Exchange Agreement (Monarchy Resources, Inc.)
Procedures. (a) The party A Person seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees to give prompt in respect of, arising out of or involving a Loss in respect of a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) with reasonable promptness after receipt by such Indemnified Party of notice of the assertion Third Party Claim and the determination by such Indemnified Party that such Third Party Claim has given or could give rise to a right of any claimindemnification under this Agreement, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party with such information with respect thereto that as the Indemnifying Party may reasonably request. The Without limiting the provisions of Section 8.1, the failure to so notify deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under Article VI and this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure.
(b) If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within thirty (30) days of receipt of a Claim Notice from the Indemnified Party in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in assume the defense of any Claim asserted by any third party (“Third Party Claim”Claim that primarily seeks equitable or injunctive relief or for any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claims. If the Indemnifying Party does not expressly elect (or is not entitled) and, subject to the limitations set forth in this Section, shall be entitled to control assume the defense of such Third Party Claim within the time period and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim otherwise in accordance with the provisions first sentence of this Section 12.038.4(b), (i) the Indemnified Party shall have the sole right to assume the defense of and to settle, with the consent of the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement ), such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, if the settlement does not release the Indemnified Party from shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third 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 (it being understood that, in such case, such legal fees and expenses may constitute Losses hereunder). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all liabilities witnesses, pertinent records, materials and obligations information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified 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) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the settlement imposes injunctive claimant or other equitable relief against plaintiff of the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate from all liability in the defense respect of such Third Party Claim or (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss in respect of a claim or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim,”) shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. Without limiting the provisions of Section 8.1, the failure to employ separate counsel deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its choice for obligations under Article VI and this Article VIII except to the extent that the Indemnifying Party is materially prejudiced by such purposefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or pursuant to Article VI and this Article VIII. The fees and expenses If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such separate counsel Direct Claim specified by the Indemnified Party in such Claim Notice shall be paid conclusively deemed a Loss hereunder. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated for a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay or direct the Escrow Agent to release payment from the Indemnity Escrow Account, as applicable, such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification of the Buyer Indemnified Parties required under this Agreement shall be made, to the extent available, by prompt payment by the Escrow Agent (to the extent of any amounts then available in the Indemnity Escrow Account if applicable) or payment made by the Indemnifying Party (to the extent of any amounts not then available in the Indemnity Escrow Account if applicable) of the amount of Losses in connection therewith. With respect to indemnification required under this Agreement for Losses arising out of or relating to Fundamental Representations or Fundamental Pre-Closing Covenants, Losses arising out of or relating to the Earnout Obligations described in Section 5.8 or Losses described in Section 6.2, the Buyer may elect to payment by the Escrow Agent from the Indemnity Escrow Account as set forth in Section 8.5 or by payment made by the Indemnifying Party.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(df) Each party shall cooperateNotwithstanding the provisions of Section 10.9, and cause their respective Affiliates each Indemnifying Party hereby consents to cooperate, in the defense or prosecution nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as agrees that process may be reasonably requested in connection therewithserved on each Indemnifying Party with respect to such claim anywhere.
(eg) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision For purposes of this Agreement Article VIII, whether there has been a breach of a representation in respect of that loss, the Indemnified Party must notify the Indemnifying Party Section 3.17 and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of Losses payable in connection with any such loss previously paid by breach shall be determined without regard to any information set forth in the Indemnifying PartyDisclosure Schedules (other than (i) solely with respect to the Indemnified Party last sentence of that mitigation Section 3.17(a), the information set forth in Schedule 3.17(a) of the Disclosure Schedules and (less ii) solely with respect to the Indemnified Party’s reasonable costs first sentence of mitigationSection 3.17(h), the identification of the Tax Actions set forth in Schedule 3.17(h) within two Business Days after of the benefit is receivedDisclosure Schedules).
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Matson, Inc.)
Procedures. (a) The party Any Person seeking indemnification under Section 12.02 this Article 11 (the “Indemnified Party”) agrees to shall give prompt written notice to the party against Person from whom indemnity indemnification is to be sought (the “Indemnifying Party”) of the assertion of any claim, claim or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted Action by any third party (“Third Third-Party Claim”); provided, that the failure of the Indemnified Party to give notice as provided in this Section 11.03(a) shall not relieve any Indemnifying Party of its obligations under Section 11.02, except to the extent that such failure actually prejudices the rights of any such Indemnifying Party. Such notice shall set forth in reasonable detail the Third-Party Claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, as promptly as reasonably practicable following the Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by the Indemnified Party relating to the Third-Party Claim and the Indemnified Party shall provide the Indemnifying Party with such other information with respect to any such Third-Party Claim reasonably requested by the Indemnifying Party. The Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice and, subject to the limitations set forth in this SectionSection 11.03, shall be entitled to assume control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint defend against, negotiate, settle (subject to clause (b)) or otherwise deal with such Third-Party Claim. If the lead counsel in connection withIndemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third-Party Claim, then the Retained Litigation.
Indemnified Party may defend against, negotiate, settle (csubject to clause (b)) or otherwise deal with such Third-Party Claim. If the Indemnifying Party shall assume the control defense of any Third-Party Claim, then the Indemnified Party may participate, at his or its own expense, in the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) 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 of such Third Third-Party Claim; provided, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to that such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in any such defense with separate counsel at the defense expense of the Indemnifying Party if (i) requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnifying Party, a material conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third-Party Claim.
(b) Notwithstanding anything in this Section 11.03 to the contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the written consent of the other party, settle or compromise any Third-Party Claim or permit a default or consent to entry of any judgment. Notwithstanding the foregoing, consent of the Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, (ii) such settlement does not permit any Order or other equitable relief to be entered, directly or indirectly, against the Indemnified Party or any of its Affiliates and (iii) such settlement includes an unconditional release of such Third Indemnified Party and its Affiliates from all liability on claims that are the subject matter of such Third-Party Claim and does not include any statement as to employ separate counsel or any admission of fault, culpability or failure to act by or on behalf of any Indemnified Party or any of its choice for such purpose. The fees Affiliates.
(c) After any decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction, or a settlement shall have been consummated (in accordance with this Article 11), or the Indemnified Party and expenses the Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third-Party Claim hereunder, the Indemnified Party shall forward to the Indemnifying Party notice of such separate counsel shall be paid any sums due and owing by the Indemnified PartyIndemnifying Party pursuant to this Agreement with respect to such matter.
(d) Each party shall cooperate, and cause their respective its Affiliates to cooperate, in the defense or prosecution of any Third Third-Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Procedures. (a) The party seeking indemnification under Section 12.02 this Article IX (the “Indemnified Party”) agrees to give prompt notice (the “Notice of Claim”) to the party against from whom indemnity indemnification is sought (the “Indemnifying Party”) of the assertion of any claimclaim by the Indemnified Party, or the commencement of any suit, action or proceeding (“Claim”) or the assertion of any claim by a third party in respect of which indemnity may be sought under such Section and will provide this Article IX; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not will relieve the Indemnifying Party of its obligations any liability or obligation hereunder, except to the extent such failure shall have adversely prejudiced that the Indemnifying Party clearly demonstrates that the defense of any third party suit, action or proceeding has been materially prejudiced by the Indemnified Party’s failure to give such notice, or except as provided in Section 9.1.
(b) If such Notice of Claim relates to a suit, action or proceeding by a third party, the Indemnifying Party may upon written notice given to the Indemnified Party within twenty (20) days of the receipt by the Indemnifying Party of such Notice of Claim, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not so assume control of such defense, the Indemnified Party will have the right to control such defense. The party not controlling such defense may participate therein at its own expense. If the Indemnifying Party elects to assume the defense of any such suit, action or proceeding, the Indemnified Party shall provide the Indemnifying Party with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Indemnifying Party in the defense or settlement thereof. Subject to the provisions of Section 9.5(c) below, if the Indemnifying Party shall be entitled fail to undertake any such defense, the Indemnified Party shall have the right to undertake and control in its sole discretion the defense or settlement thereof, at the Indemnifying Party’s expense. If the Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 9.5(b) and (i) proposes to settle such claim or proceeding prior to a final judgment thereon, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in the defense of settlement or (ii) proposes to forgo any Claim asserted by any third party (“Third appeal with respect thereto, then the Indemnified Party Claim”) and, subject shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to the limitations set forth in this Section, shall be entitled to control assume or reassume the defense of such Third Party Claim claim or proceeding. The party controlling such defense will keep the other party advised of the status of such action, suit or proceeding and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigationthereof.
(c) If Neither the Indemnifying Party shall assume nor the control Indemnified Party will agree to any settlement of any action, suit or proceeding without the prior written consent of the defense other party, which consent will not be unreasonably withheld or delayed. For purposes hereof, a party’s withholding of its consent to any Third Party Claim settlement which does not include as a term thereof the giving by the claimant or plaintiff to the other party of a complete, unconditional and irrevocable release from all liability in respect to such claim or litigation or which requires action (or limits action) other than the payment of money that would be considered to be Indemnifiable Losses under this Agreement will be deemed to be reasonable.
(d) All claims for indemnification asserted pursuant to this Article IX shall be resolved in accordance with the provisions of this Section 12.03, (i) Article IX and 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithEscrow Agreement.
(e) Each Sellers and the Buyer agree for themselves and on behalf of their respective Affiliates that with respect to each indemnification obligation contained in this Agreement or any other document executed in connection with the transactions contemplated hereby (i) each such obligation shall be net of any Tax benefit realized by an Indemnified Party must mitigate or its Affiliates arising in accordance connection with applicable Law the accrual, incurrence or payment of the Indemnifiable Loss and increased by any loss for which such taxes actually payable by, or reduction in taxes actually refunded to, any Indemnified Party seeks indemnification under this Agreement. If such or any Affiliate attributable to any amounts paid or payable to any Indemnified Party mitigates its loss after in connection with such indemnifiable claim and (ii) all Indemnifiable Losses shall be net of any third-party insurance payable to or for the Indemnifying Party has paid benefit of the Indemnified Party under any indemnification provision from its own or its Affiliates’ insurance policies in connection with the facts giving rise to the right of this Agreement in respect of that lossindemnification. As used herein, the Indemnified Party must notify the Indemnifying Party and pay term “Affiliate” means, with respect to the Indemnifying Party the extent of the value of the benefit (orany specified Person, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsiblethat directly, for any Damages payable or indirectly through one or more intermediaries, controls, is controlled by, or is under Section 12.02common control with, such specified Person.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 7.1 or 7.2 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“ClaimProceeding”) in respect of which indemnity may be sought under such Section Sections and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The By giving written notice within 30 days of receiving notice of a Proceeding, the Indemnifying Party shall be entitled to participate in the defense of any Claim Proceeding asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this SectionSection 7.5, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel acceptable to the Indemnified Party for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control . Notwithstanding any provision herein to the defense of, and appoint the lead counsel in connection withcontrary, the Retained LitigationIndemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, or (iii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.037.5, then (i) 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 of such Third Party Claim, if the settlement does not unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party Party, and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information records and testimony, and attend such conferences, discovery proceedings, hearings, trials or appealsinformation, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must shall mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the lesser of (i) the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) and (ii) the amount of indemnification previously received from the Indemnifying Party, in each case, within two Business Days five (5) business days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification Except with respect to Excluded Business Taxes and Indemnified Taxes (the procedures for which are provided in Section 6.3), a Person that may be entitled to be indemnified under Section 12.02 this Agreement (the “Indemnified Party”) agrees to give prompt notice to shall promptly notify the party against whom indemnity is sought or parties liable for such indemnification (the “Indemnifying Party”) of the assertion in writing of any claimpending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, or the commencement of any suit, action or proceeding (such claim being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand (to the extent known) in respect and the amount of which indemnity may be sought under Covered Loss (if known); provided, that the failure to provide such Section and will provide notice shall not release the Indemnifying Party such information with respect thereto from any of its obligations under this Article IX except to the extent that the Indemnifying Party may reasonably request. The is materially prejudiced by such failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party (as determined by a court of its obligations hereundercompetent jurisdiction), except it being agreed that notices for claims in respect of a breach of a covenant or agreement must be delivered prior to the extent expiration of any applicable survival period specified in Section 9.1 for such failure shall have adversely prejudiced the Indemnifying Partycovenant or agreement.
(b) The Upon receipt of a notice of a Third-Party Claim for indemnity from an Indemnified Party pursuant to Section 9.2 or Section 9.3, the Indemnifying Party shall will be entitled entitled, by notice to participate in the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third-Party Claim, to assume the defense and control of such Third-Party Claim (at the expense of such Indemnifying Party); provided, that the Indemnifying Party first agrees in writing to indemnify the Indemnified Party for any Claim asserted by any third party (“Third Party Claim”) andCovered Losses that may arise therefrom, subject to the limitations set forth herein; provided, further, that the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in this Section, shall be entitled to control the defense of such Third Third-Party Claim with its own counsel and appoint lead counsel for such defense, in each case at its own expense; provided that Limited Brands or its Affiliates shall control . Notwithstanding the defense offoregoing, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall not be entitled to assume the or maintain control of the defense of any Third-Party Claim, and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party, if (i) the Third-Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Third-Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages (it being understood that 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 only of the portion relating to money damages), (iii) 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), (iv) such Third Party Claim involves a material customer or material supplier of the Indemnified Party (provided, that, in accordance the case of this clause (iv), if such material customer or material supplier is also a material customer or material supplier the Party prohibited from assuming the defense by this clause (iv), then the Indemnified Party shall obtain such other Party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) prior to making major strategic decisions with respect to such defense), or (v) the Indemnifying Party withdraws from the defense of such Third-Party Claim or fails to vigorously defend such Third-Party Claim (in which case, the Indemnified Party shall be entitled to resume control of the defense of such Third-Party Claim). If the Indemnifying Party does not assume the defense and control of any Third-Party Claim pursuant to this Section 9.4(b), the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third-Party Claim with its own counsel and at its own expense. Purchaser or Seller, as the case may be, shall, and shall cause each of their respective Affiliates and Representatives to, reasonably cooperate with the provisions Indemnifying Party in the defense of this Section 12.03any Third-Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim. If the Indemnifying Party has assumed the defense and control of a Third-Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third-Party Claim for which it bears all Covered Losses, in its sole discretion and without the consent of any Indemnified Party; provided, that (A) requires only payment of monetary damages (and, for the avoidance of doubt, does not involve the imposition of any consent order, injunction or decree that would restrict the future activity or conduct of any Indemnified Party, other than customary confidentiality obligations), (B) does not include any finding of violation of Law, admission of wrongdoing, liability or fault or similar by any of the Indemnified Parties and (B) provides for a full and unconditional release of the Indemnified Parties in respect of such Third-Party Claim. Except as expressly provided in the foregoing sentence, the Indemnifying Party shall not admit any liability with respect to, or settle, compromise or discharge any Third-Party Claim without the Indemnified Party’s prior written consent. If the Indemnified Party controls the defense of any Third-Party Claim and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to reasonably participate in the settlement of such Third-Party Claim. No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed).
(c) With respect to any claim that is not a Third-Party Claim, (i) the Indemnifying Party shall obtain the prior written consent have thirty (30) days after its receipt of notice described in Section 9.4(a) to respond to the Indemnified Party in writing to any such claim, and (which shall not be unreasonably withheld, conditioned or delayedii) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Indemnifying Party from all liabilities and obligations has disputed its indemnity obligation for any Covered Loss with respect to such Third Party Claim or claim, the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party parties shall be entitled proceed in good faith to participate in the defense negotiate a resolution of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partydispute.
(d) Each party Notwithstanding anything in this Section 9.4 to the contrary, the procedures set forth in this Section 9.4 shall cooperatenot apply with respect to Excluded Business Taxes and Indemnified Taxes, and cause their respective Affiliates to cooperate, the procedures set forth in the defense or prosecution of any Third Party Claim and Section 6.3 shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithgovern with respect thereto.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Alight, Inc. / Delaware)
Procedures. (a) The party seeking indemnification under Section 12.02 (the “An Indemnified Party”) agrees to Party will give prompt notice notice, as quickly as practicable, to the party against whom indemnity is sought (the “Indemnifying Party”) Party of the assertion of any claim, claim or the commencement of any suit, action or proceeding by a third party respecting which the Indemnified Party may seek indemnity hereunder (“a "Third Party Claim”) in respect of which "). The failure to provide such notice will not forfeit the right to indemnity may be sought under such Section and will provide except to the Indemnifying Party such information with respect thereto extent that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely is prejudiced the Indemnifying Partyas a result.
(b) The Upon receipt of notice under paragraph (a) above, the Indemnifying Party shall may, by notice to the Indemnified Party, assume the defense and control of such Third Party Claim, in which case the Indemnified Party will be entitled allowed a reasonable opportunity to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) andwith its own counsel, subject to the limitations set forth in this Section, shall be entitled to control the defense expenses of such Third participation which will be borne by the Indemnified Party Claim unless the Indemnified Party reasonably will have concluded that there is a conflict of interest between the Indemnifying Party and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party.
(c) If Should there be a conflict of interest as described in paragraph (b) above:
(i) such expenses will be borne by the Indemnifying Party, provided that the Indemnifying Party shall assume will not be liable for expenses of more than one separate firm in connection with the control same matter.
(ii) The Indemnifying Party will select counsel and other significant agents of recognized standing and competence after consultation with the Indemnified Party, will at all times diligently pursue a favorable resolution thereof, and comply with any reasonable request from the Indemnified Party to keep it informed with respect to the matter.
(iii) The Indemnified Party will cooperate with the Indemnifying Party in the defense of any the Third Party Claim in accordance with the provisions of this Section 12.03and will cause its Affiliates and their respective directors, officers, employees and agents to do so.
(iiv) the The Indemnifying Party shall obtain will be authorized to consent to a settlement of, or the prior written entry of any judgment arising from the Third Party Claim, without the consent of the Indemnified Party (except in the case of a Third Party Claim relating to Taxes, which shall require the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned withheld or delayed), provided that the Indemnifying Party will (aa) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish pay or cause to be furnished paid all amounts arising out of such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials settlement or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance judgment concurrently with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.effectiveness thereof,
Appears in 1 contract
Procedures. (a) The party seeking indemnification Except as otherwise provided in Section 6.1 (related to tax indemnification), a Person that may be entitled to be indemnified under Section 12.02 this Agreement (the “Indemnified Party”) agrees to give prompt notice to shall promptly notify the party against whom indemnity is sought or parties liable for such indemnification (the “Indemnifying Party”) in writing of any pending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand (to the extent then known); provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article IX except to the extent the Indemnifying Party is actually prejudiced by such failure.
(b) Except as otherwise provided in Article VI (related to certain tax matters) and subject to the provisions of this Section 9.4, with respect to any Third Party Claim, the Indemnifying Party shall have the right, at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party and to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder. If the Indemnifying Party elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder, it shall within twenty (20) days of the Indemnified Party’s written notice of the assertion of any claimsuch Third Party Claim pursuant to Section 9.4(a), or notify the commencement Indemnified Party of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto its intent to do so; provided that the Indemnifying Party must conduct its defense of the Third Party Claim reasonably diligently thereafter, including in order to preserve its rights in this regard. If the Indemnifying Party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder or fails to notify the Indemnified Party of its election as herein provided (or fails to conduct its defense of the Third Party Claim reasonably diligently), the Indemnified Party may reasonably request. The failure to so notify defend against, negotiate, settle or otherwise deal with such Third Party Claim with counsel of its own choosing (at the Indemnifying Party’s expense; provided that the Indemnifying Party shall not relieve be required to pay for more than one such counsel (plus any appropriate local counsel)) and the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled right to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) andparticipate, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defenseat its own expense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the any such defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) with separate counsel. If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03Claim, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheldmay participate, conditioned or delayed) before entering into any settlement at its own expense, in the defense of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to ; provided that such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in any such defense with separate counsel at the defense expense of the Indemnifying Party if (i) so requested by the Indemnifying Party to participate or (ii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel (plus any appropriate local counsel) for all Indemnified Parties in connection with any Third Party Claim. Each Party agrees to provide reasonable access to each other Party to such documents and information as may reasonably be requested in connection with the defense, negotiation or settlement of any such Third Party Claim and Claim. Notwithstanding anything in this Section 9.4 to employ separate counsel the contrary, no Indemnified Party shall, without the prior written consent of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Indemnifying Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense settle or prosecution of compromise any Third Party Claim and shall furnish or cause permit a default or consent to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified entry of any Judgment with respect to any Third Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this AgreementClaim. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid assumed the defense and control of a Third Party Claim, it shall not consent to a settlement or compromise of, or the entry of Judgment arising from, any Third Party Claim without the consent of any Indemnified Party unless (A) the sole relief provided is monetary damages and the Indemnifying Party pays all amounts arising out of such settlement, compromise or Judgment that are due at the effectiveness of such settlement, compromise or Judgment concurrently therewith, (B) there is no finding or admission of any violation of Law or any violation of the rights of any Person, and (C) the Indemnified Party under any indemnification provision of this Agreement in is granted an unconditional release from all Liability with respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedclaim.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to a Third Party Claim other than those notices and documents separately addressed to the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) . Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification under Section 12.02 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claimclaim (whether by a third party or any party hereto), or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Section, specifying in reasonable detail the basis and factual background for the Claim and the amount of Damages sought, and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not give such notice will not, however, relieve the Indemnifying Party of its obligations hereunder, any liability hereunder except and only to the extent such failure shall have adversely that it is actually prejudiced the Indemnifying Partythereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their its respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Harry & David Holdings, Inc.)
Procedures. (a) The party seeking Promptly after a Person entitled to indemnification under Section 12.02 hereunder (the “Indemnified Party”) agrees has received notice or has Knowledge of any Third Party claim or proceeding, or threatened claim or proceeding (a “Third Party Claim”) which could result in a Loss for which such Party may be entitled to give prompt notice indemnification under this Article 11, the Indemnified Party shall promptly deliver to the party Party against whom indemnity indemnification is sought under this Article 11 (the “Indemnifying Party”) written notice of such Third Party Claim (the “Claim Notice”), which Claim Notice shall include, to the extent known, the nature and basis of such Third Party Claim, the basis for indemnification hereunder and the amount in dispute under action, claim or proceeding; provided, however, that the failure of the assertion of any claim, Indemnified Party to provide the Claim Notice shall not release or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide waive the Indemnifying Party such information with respect thereto from its obligations to the Indemnified Party under this Article 11 except to the extent that the Indemnifying Party is prejudiced as a result of such failure.
(b) Following receipt of the Claim Notice, the Indemnifying Party may reasonably requestelect at any time to assume and thereafter conduct the defense and settlement of any Third Party Claim subject to any such indemnification claim with counsel of the Indemnifying Party’s choice and to settle or compromise any such Third Party Claim, and the Indemnified Party shall cooperate in all respects with the conduct of such defense by the Indemnifying Party and/or the settlement of such Third Party Claim by the Indemnifying Party; provided, however, that the Indemnifying Party will not approve of the entry of any judgment or enter into any settlement or compromise with respect to the Third Party Claim without the Indemnified Party’s prior written approval (which must not be unreasonably withheld or delayed), unless the terms of such settlement provide for a complete release of the claims that are the subject of such action, claim or proceeding in favor of the Indemnified Party. The failure Notwithstanding the foregoing, the Indemnified Party shall have the right to so notify control the defense of, and the Indemnifying Party shall not relieve be entitled to assume the defense of, any Third Party Claim that seeks relief other than monetary damages against the Indemnified Party and that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages.
(c) The Parties agree to cooperate fully in connection with the defense, negotiation or settlement of any claim for indemnification arising from a Third Party Claim. Such cooperation will include the retention and, upon the request of the party defending, negotiating or settling the claim, the provision to such party of records and information which are reasonably relevant to such Third Party Claim, and making employees and other Representatives reasonably available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.
(d) If the Indemnifying Party of its obligations hereunder, except fails or refuses to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control undertake the defense of such Third Party Claim within thirty (30) calendar days after the claim for indemnification has been tendered to the Indemnifying Party by the Indemnified Party, pursuant to and appoint lead counsel for in accordance with Section 11.5(b), or if the Indemnifying Party later fails to conduct in good faith the defense or withdraws from such defense, in each case at its expense; provided that Limited Brands or its Affiliates the Indemnified Party shall control have the right to (i) undertake the defense ofof such claim with counsel of its own choosing, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If with the Indemnifying Party being responsible for the reasonable costs and expenses of such defense as Losses hereunder if and to the extent that such claim is a claim for which such Indemnified Party is entitled to be defended, indemnified, held harmless or reimbursed under this Article 11, and (ii) settle or compromise, or attempt to settle or compromise, the Third Party Claim; provided, however, that the Indemnified Party shall assume the control of the defense of any not settle or compromise such Third Party Claim in accordance with the provisions of this Section 12.03, (i) without the Indemnifying Party shall obtain the Party’s prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party).
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sol-Gel Technologies Ltd.)
Procedures. (a) The party Any Party seeking indemnification under Section 12.02 this Article X (the “Indemnified Party”) agrees to shall give prompt notice to the party Party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or a claim for indemnification hereunder; provided that no delay on the commencement part of any suit, action or proceeding (“Claim”) the Indemnified Party in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations any Liability hereunder, except to the extent such failure shall have adversely prejudiced that the Indemnifying Party.
(b) The Party has been prejudiced thereby. If the claim for indemnification relates to a Third Party Claim, the Indemnifying Party shall be entitled to may, if it so elects, participate in and control the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its own expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) . If the Indemnifying Party shall assume the assumes control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03Claim, (i) the Indemnifying Party shall obtain not be liable under this Article X for any fees or any other expenses with respect to the prior written consent defense of such Third Party Claim incurred by the Indemnified Party or any compromise or settlement effected by the Indemnified Party without the Indemnifying Party’s written consent. Notwithstanding the foregoing, whether or not the Indemnifying Party assumes the defense of a Third Party Claim, (which shall a) if the Indemnified Party reasonably determines in good faith that there may be defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party or (b) the Indemnified Party’s counsel advises the Indemnified Party in writing, with a copy delivered to Seller, that there is a conflict of interest that could make it inappropriate or inadvisable under applicable standards of professional conduct to have common counsel, then the Indemnified Party may, by written notice to the Indemnifying Party, at its own expense, participate in, but not be unreasonably withheldcontrol, conditioned the defense, compromise or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release provided that the Indemnified Party from all liabilities shall not be bound by any determination of a Third Party Claim so defended or any compromise or settlement effected without its consent. The Party controlling the defense of any third party suit, action or proceeding shall keep the other Party advised of the status of such action, suit or proceeding and obligations the defense thereof and shall consider in good faith recommendations made by the other Party with respect thereto. Notwithstanding anything to the contrary in this Agreement, if a settlement offer solely for money damages is made by a third party and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party’s willingness to accept the settlement offer and pay the total amount called for by such offer (subject to the limitations in Section 10.3 of this Agreement), and the Indemnified Party declines to accept such offer, the Indemnified Party may continue to contest such Third Party Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim or that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement imposes injunctive or other equitable relief against offer that the Indemnified Party and declined to accept or (iiB) the aggregate Damages of the Indemnified Party shall be entitled with respect to participate in the defense of such Third Party Claim and (subject to employ separate counsel the limitations in Section 10.3 of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received).
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
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Procedures. (a) The party seeking indemnification under Section 12.02 (the “Promptly after receipt by an Indemnified Party”) agrees to give prompt Party of notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suitaction, action suit or proceeding (“Claim”) by a person not a party to this Agreement in respect of which indemnity may be sought under such Section and the Indemnified Party will seek indemnification hereunder (a "Third Party Action"), the Indemnified Party will notify the party required to provide indemnification (the "Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The Party") in writing, but any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunderit from any liability that it may have under this Section 11.3, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume is prejudiced by the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the failure to give such notice. 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim Action and to assume control of such defense (including settlement thereof) with counsel reasonably acceptable to such Indemnified Party; provided however, that: (i) the Indemnified Party shall be permitted to participation the defense of such Third Party Action and to employ separate counsel of as its choice for such purpose. The fees and own expense (which shall not constitute legal expenses subject to indemnification) to assist in the handling of such separate counsel Third Party Action; (ii) the Indemnifying Party shall be paid by obtain the prior written approval of the Indemnified Party before settlement of or ceasing to defend such Third Party Action, if such action would adversely affect the Indemnified Party.
; (diii) Each party no Indemnifying Party shall cooperate, and cause their respective Affiliates consent to cooperate, in the entry of any judgment or enter into any settlement that does not include the unconditional release of each Indemnified Party from all liability under such Third Party Action; (iv) the Indemnifying Party shall not be entitled to control the defense or prosecution of any Third Party Claim Action unless it has confirmed in writing its assumption of such defense and shall furnish or cause continues to be furnished such records, information defend same reasonably and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
good faith; (ev) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party's assumption of the defense of such Third Party has paid Action hereunder, the Indemnifying Party shall not be responsible for any legal expenses of the Indemnified Party under and the Indemnified Party will not admit any indemnification provision liability, settle, compromise or discharge the claim underlying such Third Party Action without the Indemnifying Party's prior written consent; (vi) if the Indemnifying Party does not assume the defense of this Agreement in respect of that losssuch Third Part Action, the Indemnified Party must notify shall have the right to defend and/or settle same in such manner as it may deem appropriate at the cost and expense of the Indemnifying Party; (vii) the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to will promptly reimburse the Indemnified Party in cash, check or wire transfer periodically upon receipt of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedan invoice therefor with supporting documentation.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. All claims by any Indemnified Party shall be asserted and resolved in accordance with the following provisions. If any claim or demand for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party by a third party (aa "Third Party Claim"), the Indemnified Party shall with reasonable promptness (but in no event later than ten (10) The party seeking indemnification under Section 12.02 (days after the “Third Party Claim is so asserted or sought against the Indemnified Party”) agrees notify in writing the Indemnifying Party of such Third Party Claim enclosing a copy of all pages served and stating with reasonable specificity the circumstances of the Indemnified Party's claim for indemnification; provided, however, that any failure to give prompt such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party shall defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party's notice to the party Indemnifying Party as set forth above, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any governmental authority, so as to enable the Third Party Claim to be defended against whom indemnity is sought (or resolved without expense or other action by the “Indemnified Party. Upon request of the Indemnifying Party”) of , the assertion of any claimIndemnified Party shall, or to the commencement of any suit, action or proceeding (“Claim”) extent it may legally do so and to the extent that it is compensated in respect of which indemnity may be sought under such Section and will provide advance by the Indemnifying Party for any costs and expenses thereby incurred: (i) take such information with respect thereto that action as the Indemnifying Party may reasonably request. The failure to so notify request in connection with such action, (ii) allow the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent dispute such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate action in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent name of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect conduct a defense to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense action on behalf of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(eiii) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay render to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any all such loss previously paid by assistance as the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedmay reasonably request in connection with such dispute and defense.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking Any indemnification of Grifols, Grifols Affiliates, Cadence, or Cadence Affiliates hereunder shall include and extend to the benefit of their respective shareholders, directors, officers and employees. Any person that may be entitled to indemnification under Section 12.02 this Agreement (the an “Indemnified Party”) agrees to shall give prompt written notice to the party against whom indemnity is sought Person obligated to indemnify it (the an “Indemnifying Party”) with reasonable promptness upon becoming aware of any facts upon which a claim for indemnification will be based; the assertion notice shall set forth such information with respect thereto as is then reasonably available to the Indemnified Party. The Indemnifying Party shall have the right to undertake the defense of any claim, or the commencement of any demand, suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party Third Party (a “Third Party Claim”) and, subject with counsel reasonably satisfactory to the limitations set forth Indemnified Party and the Indemnified Party shall cooperate in this Sectionsuch defense and make available all records, shall be entitled to control materials and witnesses reasonably requested by the defense of such Third Indemnifying Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, therewith at the Retained Litigation.
(c) Indemnifying Party’s expense. If the Indemnifying Party shall assume the control of have assumed the defense of any Third the Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses (other than for reasonable costs of investigation) subsequently incurred by the Indemnified Party in accordance connection with the provisions of this Section 12.03defense thereof. The Indemnifying Party shall not be liable for any Third-Party Claim settled without its consent, (i) the which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheldprior to ceasing to defend, conditioned settling or delayed) before entering into otherwise disposing of any settlement of such Third Third-Party Claim, Claim if the settlement does not release as a result thereof the Indemnified Party from all liabilities and obligations with respect would become subject to such Third Party Claim or the settlement imposes injunctive or other equitable relief against or if the Indemnified Party and (ii) the Indemnified Party shall be entitled may reasonably object to participate in the defense such disposition of such Third Third-Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by based on a continuing adverse effect on the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Manufacturing and Supply Agreement (Cadence Pharmaceuticals Inc)
Procedures. (a) The party seeking indemnification under Section 12.02 In respect of a claim arising out of or involving a Loss by any Person against an Indemnified Party (the such claim a “Third Party Claim”), such Indemnified Party”) agrees Party shall deliver a Claim Notice in respect thereof to give prompt notice to the party against whom indemnity is sought Seller (the “Indemnifying Party”) with reasonable promptness after receipt by the Indemnified Party of notice of the assertion of any claimThird Party Claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will shall provide the Indemnifying Party with (i) the specific subsection of Section 8.2 upon which the Indemnified Party is basing its claim and, if applicable, the representation and warranty or covenant alleged to have been breached by the Indemnifying Party; (ii) a reasonably detailed description of the facts and circumstances giving rise to the claim to the extent that such information is available to the Indemnified Party; and (iii) to the extent estimable, a good faith estimate of the total amount of, the Losses actually incurred or expected to be incurred by the Indemnified Party with respect thereto to such claim. The failure to timely deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Section 8 except to the extent that the Indemnifying Party may reasonably requestis materially prejudiced by such failure. The failure to so notify the Indemnifying existence of any Third Party Claim shall not relieve the Indemnifying Party create a presumption of its obligations hereunderany indemnification obligation of any party to this Agreement or any breach of any representations, except to the extent such failure shall have adversely prejudiced the Indemnifying Partywarranties or covenants set forth in this Agreement or any Ancillary Agreement.
(b) The Indemnifying Party shall be entitled have the right, upon written notice to participate the Indemnified Party within 30 days of receipt of a Claim Notice from the Indemnified Party in the defense respect of any Claim asserted by any third party (“such Third Party Claim”) and, subject to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the limitations set forth in this Section, shall be entitled Indemnified Party. If the Indemnifying Party does not expressly elect to control assume the defense of such Third Party Claim within the time period and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim otherwise in accordance with the provisions first sentence of this Section 12.038.3(b), (i) the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim; provided, however, that any settlement of such Third Party Claim entered into by the Indemnified Party without the Indemnifying Party shall obtain the Party’s prior written consent of the Indemnified Party (which shall not to be unreasonably withheld, conditioned or delayed) before entering into shall not be determinative of the existence or amount of any settlement indemnifiable Losses. The party not controlling the defense of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or shall have the settlement imposes injunctive or other equitable relief against the Indemnified Party right to employ separate counsel and (ii) the Indemnified Party shall be entitled to participate in the defense thereof, but the fees and expenses of such Third counsel shall be at the expense of such party unless, in the opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party Claim and to be represented by separate counsel due to actual or potential conflicts of interest, in which case the Indemnified Party shall have the right to employ separate counsel of its choice for such purpose. The to represent it and in that event the reasonable documented out-of-pocket fees and expenses of such separate counsel shall be paid by the Indemnifying Party.
(c) The party not controlling the Third Party Claim (the “Non-Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, pertinent records, materials and information in the Non-Controlling Party’s possession or under the Non-Controlling Party’s control relating thereto as is reasonably required by the Controlling Party; provided, however, that such actions and cooperation by the Non-Controlling Party will not unduly disrupt the operations of the Non-Controlling Party’s business or cause the Non-Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non-Controlling Party to become public. The Controlling Party shall not, without the prior written consent of the Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim; provided, however, that, if an Indemnifying Party is proposing to enter into any settlement or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of Indemnified Party shall not be required if (i) the Indemnifying Party agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment (net of applicable baskets and deductibles set forth in Section 8.4) and such settlement, compromise or judgment includes no admission of liability by or other obligation on the part of the Indemnified Party, and (ii) such settlement, compromise or judgment includes no finding or admission of liability by or other obligation or equitable remedies on the part of the Indemnified Party with respect to such Third Party Claim, and (iii) such claim, settlement, compromise or judgment includes an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim.
(d) Each party An Indemnified Party seeking indemnification in respect of, arising out of or involving a Loss that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”) shall cooperatedeliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request. The failure to timely deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Section 8 except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall 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, including providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters; provided, however, that such actions and cooperation by the Non-Controlling Party will not unduly disrupt the operations of the Non-Controlling Party’s business or cause their respective Affiliates the Non-Controlling Party to cooperatewaive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non-Controlling Party to become public. If the Indemnifying Party does not notify the Indemnified Party within 15 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall indemnify the Indemnified Party for such Losses (or, in the defense or prosecution case of any Third notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8. If the Indemnifying Party Claim agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall indemnify the Indemnified Party for such Losses (or, in the case of any notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8, without prejudice to or waiver of the Indemnified Party’s claim for the difference. If the Indemnifying Party contests the payment of all or part of the claimed amount, the Indemnifying Party and the Indemnified Party shall furnish or cause use good faith efforts to be furnished resolve such recordsdispute. If such dispute is not resolved within 30 days following the delivery by the Indemnifying Party of such response, information the Indemnifying Party and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested the Indemnified Party shall each have the right to seek remedies in connection therewithaccordance with the provisions of Section 10.10.
(e) Each Indemnified A Claim Notice shall, with respect to Third Party must mitigate in accordance with applicable Law Claims, include copies of material communications and documentation, any loss for summons, complaint or other pleading which may have been served on such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after party and any written claim, demand, invoice, bill or other document evidencing or asserting the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedsame.
(f) Each To the extent the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, the Indemnifying Party will be entitled to exercise, and will be subrogated to, any rights and remedies (including rights of indemnity, rights of contribution and other rights of recovery) that the Indemnified Party shall use reasonable efforts to collect or any amounts available under insurance coverage, or from of the Indemnified Party’s Affiliates may have against any other Person alleged with respect to be responsible, any Losses or circumstances to which such indemnification payment is directly or indirectly related. The Indemnified Party will take such actions as the Indemnifying Party may reasonably request for any Damages payable under Section 12.02the purpose of enabling the Indemnifying Party to perfect or exercise the Indemnifying Party’s right of subrogation hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tempest Therapeutics, Inc.)
Procedures. (a) The party seeking Any party(ies) entitled to indemnification under Section 12.02 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against from whom indemnity the Indemnified Party is sought entitled to seek indemnification (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may the Indemnified Party is entitled to seek indemnification under Section 11.02 (it being understood that a party’s entitlement to indemnification shall be sought under such Section determined without regard to the application of (i) the Seller General Basket, Seller Environmental Basket and Buyer Basket (collectively, the “Baskets”) and (ii) the Seller Cap and Buyer Cap (collectively, the “Caps”)) and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Seller shall control and appoint lead counsel for the defense of any claim asserted by any third party (a “Third Party Claim”) that is an Excluded Liability. In addition, the Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim or any Environmental Matter if (i) it is reasonably expected that indemnification payments to be made by the Indemnifying Party in respect of such Third Party Claim or Environmental Matter in accordance with Section 11.02 (taking into account the Baskets and the Caps) will be greater than the harm suffered by the Indemnified Party as a result of such Third Party Claim, including any injunctive, equitable or other non-monetary relief sought by such third party, (ii) the Indemnifying Party shall acknowledge in writing its obligation to indemnify the Indemnified Party for any Damages relating to such Third Party Claim or Environmental Matter (subject to the limitations on indemnification set forth in this Article 11, including the Baskets and the Caps) and (iii) the Indemnifying Party shall notify the Indemnified Party that it has elected to assume such defense promptly but in any event within 30 days after receipt of the notice with respect to such Third Party Claim referred to in Section 11.02(a) or, with respect to Environmental Matters, in a timely manner given the facts and circumstances and changes thereto or development thereof over time (it being understood that the Indemnified Party shall be entitled to take such actions as may be required to defend such Third Party Claim, including if necessary seeking extensions of time to respond to pleadings and the like, prior to the receipt of such acknowledgement within the 30-day period referred to above). The Indemnified Party shall be entitled to control and appoint lead counsel for the defense of any Third Party Claim if the Indemnifying Party is not entitled to, or fails to, elect to assume the defense of such claim pursuant to the foregoing sentence, or thereafter if the Indemnifying Party fails or ceases to prosecute such claim with reasonable diligence.
(c) The party controlling the defense of any Third Party Claim or Environmental Matter in accordance with the provisions of this Section 12.03, 11.03 (the “Controlling Party”) (i) shall pay all the Indemnifying costs of such defense (including attorneys’ fees), provided that if the Indemnified Party is the Controlling Party, then such costs shall be considered Damages arising out of such Third Party Claim for purposes of Section 11.02, and (ii) shall obtain the prior written consent of the Indemnified Party other party (which shall not be unreasonably withheld, conditioned or delayedthe “Non-Controlling Party”) before entering into any settlement of such Third Party ClaimClaim or Environmental Matter, such consent not to be unreasonably withheld (A) if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes impose injunctive or other equitable relief against the Indemnified Non-Controlling Party and or (iiB) with respect to Environmental Matters, if the Indemnified settlement is consistent with the terms of Section 11.03(g). The Non-Controlling Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Non-Controlling Party, unless in the reasonable judgment of counsel to the Non-Controlling Party there is a conflict of interest between the Controlling Party and the Non-Controlling Party, in which case such fees and expenses shall be paid by the Controlling Party (provided that if the Indemnified Party is the Controlling Party, then such fees and expenses shall be considered Damages arising out of such Third Party Claim for purposes of Section 11.02). In any Third Party Claim where an Indemnified Party is the Non-Controlling Party and which involves any material customer or supplier of the Indemnified Party or its Affiliates, such participation shall in any event include the right of the Non-Controlling Party to engage in direct discussions with the other parties to such Third Party Claim, including discussions concerning the claim and the potential resolution thereof; provided that (1) such participation right shall not alter the rights of the Controlling Party to control and direct the defense of such Third Party Claim, including the right to reject or accept any resolution proposed by the Non-Controlling Party in such Controlling Party’s sole discretion, and (2) the Non-Controlling Party shall disclose to such other parties that in conducting any such discussions, the Non-Controlling Party is acting on its own behalf and not as a Representative of the Controlling Party and the Non-Controlling Party is not authorized to agree to any settlement with respect to such Third Party Claim. With respect to any Third Party Claim relating to the Specified Matters, the Controlling Party shall retain the legal counsel identified in Section 11.03(c) of the Disclosure Schedule with respect thereto and shall not replace or discharge such counsel absent good cause.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. In furtherance and not in limitation of the foregoing, in connection with the defense of any Infringement Claim, Buyer shall, to the extent requested by Seller, assert (or, in Buyer’s sole discretion, allow Seller to assert on its behalf) against the Person making such Infringement Claim any claims for infringement or misappropriation of Business Intellectual Property Rights for which there is a reasonable basis in law and fact. A Controlling Party shall, to the extent requested by the Non-Controlling Party, (i) keep the Non-Controlling Party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with periodic summaries of the status of such Third Party Claim and the amounts spent with respect thereto and copies of all material plans, reports and external correspondence and notifying the Non-Controlling Party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties) and (ii) provide the Non-Controlling Party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments.
(e) Each Indemnified Party must mitigate in accordance with applicable as required by Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use its reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.0211.02.
(g) In addition to the provisions set forth in Section 11.03(a), 11.03(b), 11.03(c), 11.03(e) and 11.03(f) above, with respect to any matter for which Buyer or its Affiliates seek indemnification relating to a Warranty Breach of Section 3.20, an Excluded Environmental Liability, an Identified Environmental Liability or any other environmental matter otherwise subject to indemnification under the terms of this Agreement (“Environmental Matters”):
(i) Except as set forth in Section 11.03(b), Buyer will retain the defense, control and resolution of any Environmental Matters, including disclosure, investigation, negotiation, performance and settlement of such matters. With respect to any Environmental Matters, the Controlling Party shall, to the extent requested by the Non-Controlling Party, (1) keep the other party reasonably informed relating to the progress of any significant matter (including providing the Non-Controlling Party with copies of all material plans, reports and external correspondence and notifying the other party of, and giving the Non-Controlling Party the opportunity to attend, scheduled voice or in-person conferences with regulators or other third parties), (2) provide the other party with a reasonable period of time, given the specific circumstances, to permit such party to comment on any material proposed actions, and to consider in good faith any such comments and (3) not unreasonably interfere with the ordinary course operation of the business at any Real Property or with the continuing use of the Real Property in the manner being used as of the Closing Date;
(ii) Buyer agrees to, and shall cause its Affiliates to, cooperate with Seller in providing all necessary and reasonably requested access to properties, facilities, employees and records and timely providing Seller with copies of all communications relating to such matter received from any Governmental Authority or third party;
(iii) Each party agrees to cooperate, and to cause their respective Affiliates to cooperate, in the defense or prosecution of any Environmental Matter and shall provide to the other party with copies of any and all material environmental audits, studies, action plans, tests and communications with any Governmental Agency or third party relating to investigatory, remedial or other activities with respect to any property which may be subject to a claim for indemnification for any Environmental Matters;
(iv) Seller’s obligation to indemnify Buyer or any of its Affiliates shall be limited to those Damages which must be incurred, based upon (1) the use of a reasonable and cost-effective method available under the circumstances and (2) the industrial or commercial use of the property as of the Closing Date, to meet, in a reasonably cost-effective manner, the requirements of any applicable Environmental Law or to meet the demands of any applicable Governmental Authority or as required by any judicial or administrative resolution, order or settlement agreement of a Third Party Claim otherwise complying with the terms of this Agreement. To the extent necessary to achieve the purposes set forth in this Section, Buyer and its Affiliates agree that engineering or institutional controls and a deed or other restriction are each a reasonable cost-effective method, so long as such control or restriction does not materially limit the industrial or commercial activities being performed on the applicable property as of the Closing Date.
(v) Seller shall have no liability under this Agreement for any Damages relating to Environmental Matters to the extent arising out of any sampling of the soil or groundwater or any disclosure, report, or communication to any Governmental Authority or third party by Buyer or any of its Affiliates (or by a Third Party Buyer of any Real Property as described in clause (B) below), or out of the initiation or encouragement by Buyer or any of its Affiliates of any action by any Governmental Authority or third party unless:
(A) Buyer or any of its Affiliates reasonably believes it must investigate, take action, initiate or encourage any such action due to (1) the requirements of any applicable law, including any Environmental Law, (2) a need to respond to any Third Party Claim against Buyer or its Affiliates, (3) the discovery of a condition first identified as a result of construction activities which would have been undertaken in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date, in the absence of an indemnity or (4) the discovery of a condition in the ordinary course of operating the site in the manner in which it is operating as of the Closing Date which condition, if unaddressed, would reasonably be expected to result in a material Third Party Claim or imminent and substantial risk to human health;
(B) Buyer or any of its Affiliates reasonably believes that it (or any Third Party Buyer) must investigate, take action, initiate or encourage any such action to meet the demands of a reasonable third party buyer or its financing parties (collectively, “Third Party Buyers”) in connection with the sale of the applicable Real Property to such third party or any other transaction involving the direct or indirect transfer of, or related encumbrance on, the applicable Real Property; provided that the liability of Seller under this Agreement for any Damages for any Environmental Matters triggered by such Third Party Buyer requirement shall be limited to 50% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps; and
(C) Buyer or any of its Affiliates investigates, takes action, initiates or encourages any such action other than as described above, in which case the liability of Seller under this Agreement for any Damages relating to Environmental Matters triggered by such investigation, action, initiation or encouragement shall be limited to 20% of any Damages incurred by Buyer or its Affiliates, to be determined after the application of the Baskets and Caps.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Sensata Technologies Holland, B.V.)
Procedures. (a) The party seeking indemnification under Section 12.02 12.2 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0312.3, (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearingshearing, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The If a party seeking hereto seeks indemnification under Section 12.02 this ---------- Article VIII, such party (the “"Indemnified Party”") agrees to shall promptly give prompt written ----------------- notice to the other party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion after receiving written ------------------ notice of any action, lawsuit, proceeding, investigation, or other claim against it (if by a third party) or discovering the liability, obligation, or facts giving rise to such claim for indemnification, describing the claim, or the commencement of any suitamount thereof (if known and quantifiable), action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto basis thereof; provided that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, hereunder except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The . In that regard, if any action, lawsuit, proceeding, investigation, or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article VIII, the Indemnified Party shall promptly notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party such action, lawsuit, proceeding, investigation, or other claim giving rise to the Indemnified Party's claim for indemnification at its expense, and at its option (“Third Party Claim”) and, subject to the limitations set forth in this Section, below) shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying Party's right to assume control of such defense, it must first agree in each case at its expensewriting to be fully responsible for all Losses relating to such claims and to provide full indemnification to the Indemnified Party for all Losses relating to such claim; and provided further that Limited Brands the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (i) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or its Affiliates shall claims for monetary damages), (ii) involves criminal allegations against an Indemnified Party, (iii) is one in which the Indemnifying Party is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party; or (iv) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. If the Indemnifying Party is permitted to assume and control the defense of, and appoint the lead counsel in connection withelects to do so, the Retained Litigation.
Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in (cbut not control) the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless the employment thereof has been specifically authorized by the Indemnifying Party in writing. If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03such claim, (i) 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 of a claim or ceasing to defend such Third Party Claimclaim, if pursuant to or as a result of such settlement or cessation, injunction, or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly unconditionally release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyclaim.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Stock Purchase Agreement (Communications Instruments Inc)
Procedures. (a) The party seeking Any party(ies) entitled to indemnification under Section 12.02 11.02 (the “Indemnified Party”) agrees to give prompt notice to the party against from whom indemnity the Indemnified Party is sought entitled to seek indemnification (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may the Indemnified Party is entitled to seek indemnification under Section 11.02 (it being understood that a party's entitlement to indemnification shall be sought under such Section determined without regard to the application of (i) the Seller General Basket, Seller Environmental Basket and Buyer Basket (collectively, the “Baskets”) and (ii) the Seller Cap and Buyer Cap (collectively, the “Caps”)) and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Seller shall control and appoint lead counsel for the defense of any claim asserted by any third party (a “Third Party Claim”) that is an Excluded Liability. In addition, the Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim or any Environmental Matter if (i) it is reasonably expected that indemnification payments to be made by the Indemnifying Party in respect of such Third Party Claim or Environmental Matter in accordance with Section 11.02 (taking into account the provisions of this Section 12.03, (iBaskets and the Caps) will be greater than the Indemnifying Party shall obtain the prior written consent of harm suffered by the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement as a result of such Third Party Claim, if including any injunctive, equitable or other non-monetary relief sought by such third party, (ii) the settlement does not release Indemnifying Party shall acknowledge in writing its obligation to indemnify the Indemnified Party from all liabilities for any Damages relating to such Third Party Claim or Environmental Matter (subject to the limitations on indemnification set forth in this Article 11, including the Baskets and obligations the Caps) and (iii) the Indemnifying Party shall notify the Indemnified Party that it has elected to assume such defense promptly but in any event within 30 days after receipt of the notice with respect to such Third Party Claim referred to in Section 11.02(a) or, with respect to Environmental Matters, in a timely manner given the facts and circumstances and changes thereto or the settlement imposes injunctive or other equitable relief against the Indemnified Party and development thereof over time (ii) it being understood that the Indemnified Party shall be entitled to participate in the defense of take such actions as may be required to defend such Third Party Claim Claim, including if necessary seeking extensions of time to respond to pleadings and the like, prior to employ separate counsel the receipt of its choice for such purposeacknowledgement within the 30-day period referred to above). The fees and expenses of such separate counsel Indemnified Party shall be paid by the Indemnified Party.
(d) Each party shall cooperate, entitled to control and cause their respective Affiliates to cooperate, in appoint lead counsel for the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after if the Indemnifying Party has paid is not entitled to, or fails to, elect to assume the Indemnified Party under any indemnification provision defense of this Agreement in respect of that losssuch claim pursuant to the foregoing sentence, the Indemnified Party must notify or thereafter if the Indemnifying Party and pay fails or ceases to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any prosecute such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s claim with reasonable costs of mitigation) within two Business Days after the benefit is receiveddiligence.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Texas Instruments Inc)
Procedures. Claims for indemnification under this Agreement (other than claims relating to Taxes, which shall be governed exclusively by Section 4.8(f)) shall only be asserted and resolved as follows: -61-
(a) The party seeking Any Company Indemnitee or Retained Group Indemnitee claiming indemnification under Section 12.02 this Agreement (the an “Indemnified Party”) agrees with respect to give prompt notice any claim asserted against the Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under this Article 5 shall promptly as reasonably practical notify the party against whom indemnity is sought other Party (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section Third Party Claim and will provide transmit to the Indemnifying Party a written notice (a “Claim Notice”) stating the nature, basis, the amount thereof (to the extent known or estimated, which amount shall not be conclusive of the final amount of such information Third Party Claim), the method of computation thereof (to the extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with respect thereto that copies of the Indemnifying relevant documents evidencing such Third Party may reasonably requestClaim and the basis for indemnification sought. The failure Failure to so notify the Indemnifying Party shall in accordance with this Section 5.5(a) will not relieve the Indemnifying Party of its obligations hereunderany liability that it may have to the Indemnified Party, except to the extent such failure shall have adversely prejudiced the Indemnifying Party is materially prejudiced by the Indemnified Party’s failure to give such notice.
(b) The Except as provided in Section 5.5(d), an Indemnifying Party may elect at any time to assume and thereafter conduct the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice and to settle or compromise any such Third Party Claim, and each Indemnified Party shall reasonably cooperate in all respects with the conduct of such defense by the Indemnifying Party or the settlement of such Third Party Claim by the Indemnifying Party; provided, however, that (x) prior to assuming control of such defense, the Indemnifying Party must (i) acknowledge that it would have an indemnity obligation for Damages resulting from such Third Party Claim as provided under this Article 5 and (ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party has adequate resources to defend the Third Party Claim and fulfill its indemnity obligations hereunder and (y) the Indemnifying Party will not approve the entry of any judgment or enter into any settlement or compromise with respect to such Third Party Claim without the Indemnified Party’s prior written approval (not to be entitled unreasonably withheld, conditioned or delayed), unless the terms of such settlement provide for a complete release of the claims that are the subject of such Third Party Claim in favor of the Indemnified Party and do not impose any obligation or liability on the Indemnified Party (other than any obligation or liability that is de minimis in nature). If the Indemnified Party gives an Indemnifying Party notice of a Third Party Claim and the Indemnifying Party does not, within thirty (30) calendar days after such notice is given or if the legal term to provide the response is twenty (20) days or shorter, then within the first half of the legal term to provide such response, give notice to the Indemnified Party of its election to assume the defense of the Third Party Claim and thereafter promptly assume such defense, then the Indemnified Party may conduct the defense of such Third Party Claim; provided, however, that the Indemnified Party will not agree 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 Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) unless the terms of such settlement provide for a complete release of the claims that are the subject of such Third Party Claim in favor of the Indemnifying Party and do not impose any obligation or liability on the Indemnified Party (other than any obligation or liability that is de minimis in nature).
(c) The Indemnified Party or Indemnifying Party, as the case may be, that is not controlling such defense shall have the right, at its own cost and expense, to participate in the defense of any Claim asserted by any third party (“Third Party Claim”Claim with counsel selected by it; provided that in the following circumstances the Indemnifying Party shall pay the reasonable fees and expenses of such separate counsel: (x) and, subject to the limitations set forth extent incurred by the Indemnified Party prior to the date that the Indemnified Party assumes control of the defense of the Third Party Claim or (y) if the Indemnified Party is advised by counsel that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in this Sectionthe conduct of the defense of such claim or there may be one or more defenses or claims available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party and that could be materially adverse to the Indemnifying Party. In the case of the foregoing clause (y), the Indemnifying Party shall be entitled keep the Indemnified Party reasonably informed with respect to such Third Party Claim and reasonably cooperate with the Indemnified Party in connection therewith. If the Indemnifying Party agrees in writing not to control the defense of such Third Party Claim and appoint lead counsel for such defenseClaim, in each case at its expense; provided that Limited Brands or its Affiliates shall the Indemnified Party may, subject to clause (b) above, control the defense ofof such Third Party Claim with counsel of its choosing, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall be liable for the reasonable fees and expenses of such counsel to the Indemnified Party.
(d) The Indemnifying Party shall not be entitled to assume the or maintain control of the defense of any Third Party Claim in accordance with if and to the provisions of this Section 12.03, (i) extent 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, the settlement imposes injunctive Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate or any of its Affiliates, their respective stockholders or Representatives or in the defense case of such a Company Indemnitee, the amount of the Third Party Claim and Claim, if determined in accordance with the claimant’s demands, would reasonably be expected to employ separate counsel result in an amount of its choice aggregate Damages that, together with all other unresolved claims for such purpose. The fees and expenses of such separate counsel shall be paid indemnification by the Indemnified Party.
(d) Each party shall cooperateCompany Indemnitees, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to would not be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithavailable for recovery under this Article 5.
(e) Each If any Indemnified Party must mitigate in accordance with applicable Law becomes aware of any loss circumstances that may give rise to a claim for which indemnification pursuant to this Article 5 for any matter not involving a Third Party Claim, then such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must shall promptly notify the Indemnifying Party and pay deliver to the Indemnifying Party a written notice describing in reasonable detail the extent nature of the value claim, describing in reasonable detail the basis of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs request for indemnification under this Agreement and including the Indemnified Party’s best estimate of mitigationthe amount of Damages that may arise from such claim. Failure to notify the Indemnifying Party in accordance with this Section 5.5(e) within two Business Days after will not relieve the benefit Indemnifying Party of any liability that it may have to the Indemnified Party, except to the extent the Indemnifying Party is receivedmaterially prejudiced by the Indemnified Party’s failure to give such notice or the Indemnified Party fails to notify the Indemnifying Party of such claim in accordance with this Section 5.5(e) prior to the applicable Survival Expiration Date.
(f) Each In respect of a Third Party Claim, at the reasonable request of the Indemnifying Party, each Indemnified Party shall use grant the Indemnifying Party and its Representatives all reasonable efforts access to collect any amounts available the books, records, employees and properties of such Indemnified Party to the extent reasonably related to the matters to which the applicable indemnification claim relates. All such access shall be granted during normal business hours and shall be granted under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02the conditions which shall not unreasonably interfere with the business and operations of such Indemnified Party.
Appears in 1 contract
Sources: Master Transaction Agreement (Liberty Latin America Ltd.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) The party seeking If any Person who or which is entitled to seek indemnification under Section 12.02 9.2 (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any claim asserted against an Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to give prompt notice indemnification under Section 9.2, the Indemnified Party shall promptly (i) notify the Party obligated to the party against whom indemnity is sought Indemnified Party pursuant to Section 9.2 above, (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding Third Party Claim and (“Claim”ii) in respect of which indemnity may be sought under such Section and will provide transmit to the Indemnifying Party such information a written notice (“Claim Notice”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect thereto that to such claim (if any), the Indemnifying Indemnified Party’s best estimate of the amount of Losses attributable to the Third Party may reasonably requestClaim and the basis of the Indemnified Party’s request for indemnification under this Agreement. The failure Failure to so notify the Indemnifying Party timely provide such Claim Notice shall not relieve affect the Indemnifying Party right of its obligations the Indemnified Party’s indemnification hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is prejudiced by such delay or omission.
(b) The Indemnifying Party shall be entitled have the right to participate in defend the Indemnified Party against such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Claim asserted by any third party (“the Third Party Claim”) and, subject Claim (such election to be without prejudice to the limitations set forth in right of the Indemnified Party to dispute whether such claim is an identifiable Loss under this SectionArticle IX), then the Indemnifying Party shall be entitled have the right to control the defense of defend such Third Party Claim with counsel selected by the Indemnifying Party (who shall be reasonably satisfactory to the Indemnified Party), by all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.4(b). The Indemnifying Party shall have full control of such defense and appoint lead counsel for such defenseproceedings, in each case at its expenseincluding any compromise or settlement thereof; provided that Limited Brands the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided further, that such consent shall not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates shall control Affiliates. If requested by the Indemnifying Party, the Indemnified Party agrees, at the sole cost and expense of the Indemnifying Party, to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person. The Indemnified Party may participate in, but not control, any defense ofor settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.4(b), and appoint the lead counsel in connection with, the Retained LitigationIndemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.4(b), then the Indemnified Party shall assume have the control of right to defend, and be reimbursed for its reasonable cost and expense (but only if the defense of Indemnified Party is actually ultimately determined to be entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party), by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in accordance with the provisions good faith and have full control of this Section 12.03such defense and proceedings; provided, (i) the Indemnifying Party shall obtain the prior written consent of however, that the Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into ). The Indemnifying Party may participate in, but not control, any defense or settlement of such Third Party Claim, if the settlement does not release controlled by the Indemnified Party from all liabilities pursuant to this Section 9.4(c), and obligations the Indemnifying Party shall bear its own costs and expenses with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partyparticipation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution Any claim by an Indemnified Party on account of any Losses that does not result from a Third Party Claim and shall furnish or cause to (a “Direct Claim”) will be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after asserted by giving the Indemnifying Party has paid reasonably prompt written notice thereof, but in any event not later than thirty (30) days after the Indemnified Party under any indemnification provision becomes aware of this Agreement in respect of that loss, such Direct Claim. Such notice by the Indemnified Party must notify will describe the Indemnifying Party Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and pay to will indicate the Indemnifying Party the extent of the value of the benefit (orestimated amount, if lessreasonably practicable, the amount of any such loss previously paid damages that has been or may be sustained by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs . The Indemnifying Party will have a period of mitigationtwenty (20) days within two Business Days after the benefit which to object or accept in writing such Direct Claim. Any such objection is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.called a “
Appears in 1 contract
Sources: Partnership Interests Purchase and Contribution Agreement (Eagle Rock Energy Partners L P)
Procedures. (a) The party seeking If any Person entitled to seek indemnification under Section 12.02 this Agreement (the an “Indemnified Party”) agrees receives notice of the assertion or commencement of any Third-Party Claim against such Indemnified Party with respect to give prompt notice to which the party Person against whom indemnity or which such indemnification is being sought (the an “Indemnifying Party”) is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than twenty (20) days after receipt of such notice of such Third-Party Claim. Such notice by the Indemnified Party will include a copy of the notice of the assertion of any claim, or the commencement of any suitsuch Third-Party Claim (to the extent available) and describe the basis for the Indemnified Party’s good faith belief that it is entitled to indemnification hereunder, action and indicate the estimated amount, if reasonably estimable, of the Damages that have been or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide sustained by the Indemnified Party. In the event of a Third Party Claim, the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall will be entitled to participate in the defense of any Claim asserted by any third party (“Third Party Claim”) thereof and, if it so chooses, assume control of the defense thereof (subject to the limitations set forth in this Section, shall be entitled Article IX) by giving to the Indemnified Party written notice within twenty (20) days after receipt of the notice contemplated in the preceding sentence of its intention to assume control of the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense ofClaim, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume will not be liable for any legal expenses (subject to the control of the defense of any Third Party Claim limitations set forth in accordance with the provisions of this Section 12.03, (iArticle IX) the Indemnifying Party shall obtain the prior written consent of subsequently incurred by the Indemnified Party (which shall not be unreasonably withheldin connection with the defense thereof; provided, conditioned or delayed) before entering into any settlement of such Third Party Claimhowever, if the settlement does not release that the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to may participate in the defense of such Third Party Claim and to employ separate with its own counsel of at its choice for such purposeown expense. The fees Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives notice from the Indemnifying Party as contemplated in the preceding sentence. If the Indemnifying Party does not elect to assume control of the defense of such Third Party Claim, the Indemnified Party may assume and control its own defense without prejudice to the ability of the Indemnified Party to enforce its claim for indemnification hereunder, and the Indemnifying Party will be liable for all reasonable costs and expenses (including legal expenses) paid or incurred by the Indemnified Party in conducting such defense if the Indemnified Party is entitled to indemnification hereunder; provided, however, that the Indemnifying Party shall not be liable for the costs and expenses of more than one counsel for all Indemnified Parties.
(b) Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or which involves any finding or admission of any violation of Law or admission of any wrongdoing by the Indemnified Party, or does not include a complete and unconditional release of all Indemnified Parties. The Indemnified Party shall not settle a Third Party Claim without obtaining the consent of the Indemnifying Party (such separate counsel consent not to be unreasonably withheld, conditioned or delayed) and any such settlement without the Indemnifying Party’s consent shall be deemed a waiver of the Indemnified Party’s right to indemnification hereunder with respect to such Third Party Claim. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records and employees of the Indemnified Party necessary in connection with the Indemnifying Party’s control of or participation in the defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages that does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail the basis for the Indemnified Party’s good faith belief that it is entitled to indemnification hereunder, and indicate the estimated amount, if reasonably estimable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of twenty (20) days within which to respond in writing to such Direct Claim. If the Indemnifying Party objects to such Direct Claim it shall give the Indemnified Party prompt written notice thereof (such notice to describe, in reasonable detail, the reasons for the Indemnifying Party’s good faith belief that it is not required to provide indemnification hereunder). If the Indemnifying Party does not so respond within such twenty (20) day period, the Indemnifying Party will be deemed to have accepted such claim. In the event that the Indemnifying Party objects to any Direct Claim, the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. In the event that the Indemnifying Party accepts or is deemed to have accepted any Direct Claim, it shall promptly pay or cause to be paid by all amounts arising out of such Direct Claim to the Indemnified Party.
(d) Each party shall cooperateA failure to give timely notice as provided in Section 9.4(a), and cause their respective Affiliates to cooperate, in Section 9.4(b) or Section 9.4(c) will not affect the defense rights or prosecution obligations of any Third Party Claim party hereunder, except and shall furnish or cause only to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appealsthe extent that, as may be reasonably requested in connection therewitha result of such failure, any party which was entitled to receive such notice was materially prejudiced as a result of such failure.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after Any amounts to be paid by the Seller Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement Parties in respect of that loss, indemnification obligations pursuant to Section 9.2(a) shall be made from the Indemnified Party must notify the Indemnifying Party and pay Escrow Account pursuant to the Indemnifying Party the extent Escrow Agreement; provided that, from and after depletion of the value of the benefit (orEscrow Account, if less, the amount of any such loss previously amounts to be paid by the Seller Indemnifying PartyParties in respect of indemnification obligations under (x) Section 9.2(a)(i) solely in respect of any breach or inaccuracy of any Fundamental Representation, (y) Section 9.2(a)(ii) solely in respect of any breach of Section 5.4(b), and (z) Section 9.2(a)(iii), shall be paid directly by the Seller or Parent by wire transfer of immediately available funds to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedan account designated by Purchaser.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Equity Purchase Agreement (Primus Telecommunications Group Inc)
Procedures. (a) The party If there occurs an event which a Party asserts is an indemnifiable event pursuant to Section 8.2 or Section 8.3, the Party seeking indemnification under Section 12.02 (the “Indemnified Party”) agrees shall notify the other Party obligated to give prompt notice to the party against whom indemnity is sought provide indemnification (the “Indemnifying Party”) promptly in writing specifying the facts, to the extent known, constituting the basis for such claim and the amount, to the extent known, of the assertion of claim asserted. If such event involves
(a) any claim, Person other than a Party or (b) the commencement of any suit, action Action by any Person other than a Party (any such claim or proceeding (Action being hereinafter referred to as a “Third Party Claim”) in respect of which indemnity may be sought under ), the Indemnified Party shall give such Section and will provide the Indemnifying Party prompt written notice of such information with respect thereto Third Party Claim which identifies such claim as a Third Party Claim, specifies the facts constituting the basis of such Third Party Claim and the amount, to the extent known, of such Third Party Claim; provided, however, that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder, except hereunder only to the extent that such failure shall have adversely prejudiced prejudices the Indemnifying Party.
(b) Party hereunder. The Indemnifying Party shall be entitled to participate in such Third Party Claim and to assume the defense thereof with counsel selected by the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party that the Indemnifying Party has elected to assume the defense of any Claim asserted by any third party (“Third Party Claim”) and, subject to the limitations set forth Indemnifying Party shall not be liable for any legal, investigative or other fees or expenses subsequently incurred by the Indemnified Party in this Section, shall be entitled to control connection with the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claim Claim, the Indemnified Party shall have the right to employ separate counsel and appoint lead to participate in, but not control, the defense thereof, but the fees and expenses of such counsel for such defense, in each case shall be at its expensethe expense of the Indemnified Party; provided that Limited Brands (i) if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party or its Affiliates (ii) a claim involves an allegation of violation of criminal law, the Indemnifying Party shall control be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense ofto the extent such fees and expenses relate to a claim subject to a conflict of interest or defense of a claim based on an allegation of a violation of criminal law, but in no event shall the Indemnifying Party be responsible for the fees and appoint expenses of more than one such additional counsel in any action or series of related actions. In the lead event a claim involves an allegation of a violation of criminal law, the Parties shall enter into a joint defense agreement in form and substance reasonably acceptable to the Parties. Subject to bona fide concerns regarding attorney- client privilege, the Indemnifying Party and the Indemnified Party agree to cooperate fully with each other and their respective counsel in connection withwith the defense, the Retained Litigation.
(c) negotiation or settlement of any such Third Party Claim, including providing access to any relevant books and records, properties and Representatives. If the Indemnifying Party shall assume the control of assumes the defense of any a Third Party Claim in accordance with the provisions of this Section 12.03Claim, no settlement or compromise thereof may be effected (iA) by the Indemnifying Party shall obtain without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into unless (x) there is no finding or admission of any settlement violation of Law or any violation of the rights of any Person by any Indemnified Party and all Indemnified Parties are expressly and unconditionally released from any Liability related to such Third Party Claim, if with prejudice, and (y) all relief provided is paid or satisfied in full by the settlement does not release Indemnifying Party or (B) by the Indemnified Party from all liabilities and obligations with respect without the consent of the Indemnifying Party. If the Indemnifying Party elects not to assume the defense of a Third Party Claim, the Indemnified Party shall defend such Third Party Claim with counsel selected by the Indemnified Party, which is reasonably acceptable to the Indemnifying Party, and the Indemnifying Party shall bear the reasonable fees and expenses of such counsel. Whether or not the settlement imposes injunctive or other equitable relief against 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, which consent shall not be unreasonably withheld, conditioned or delayed by the Indemnifying Party. In no event shall an Indemnifying Party be liable for any settlement effected without its written consent.
(b) In addition to, and notwithstanding any other provisions relating to Third Party Claims set forth elsewhere in this Section 8.4, any Remedial Action relating to any Seller Environmental Liabilities shall additionally be governed by the procedures set forth in this Section 8.4(b). The Seller shall have the right, at its option, to undertake sole and exclusive control over all aspects of any such Remedial Action (including retention of consultants, selection of remedial measures and negotiations and agreements with interested government agencies and third parties). In connection therewith, the Buyer agrees to provide the Seller with reasonable access to the subject facility (and to relevant documents and personnel) for purposes of conducting any Remedial Action to the extent that such access is within the control or possession of the Buyer. The Parties shall keep one another apprised of major developments relating to such matter and shall, subject to applicable legal privileges, make all final reports, filings, and other documents relating to such matter available for inspection by one another upon request. Without limiting the generally of the foregoing, (i) the Sellers shall keep the Buyer reasonably informed as to all aspects of the Remedial Actions, including all discussions and communications with Governmental Authorities, and (ii) the Indemnified Party Buyer shall be entitled permitted to review and comment on all material submissions proposed to be made by the Seller to any conferences with Governmental Authority prior to their submission and to participate in all material meetings and conferences with Governmental Authority relating to such Remedial Action, Environmental Liability and the defense Seller agrees to take into account all reasonable requests of the Buyer. Any costs incurred by the Buyer relating to oversight of activities undertaken hereunder by the Seller shall not be subject to indemnification hereunder. The Seller shall have no obligation to undertake any Remedial Action, or provide indemnification with respect thereto, unless, and then only to the extent that, Remedial Action is required by Environmental Laws, based upon continued industrial use of, and the current physical configuration (i.e., the existing “footprint”) of, the Facility. Additionally, the Seller shall have no obligation to undertake any Remedial Action, or provide indemnification with respect to any Seller Environmental Liability, in respect of any matter which is identified through environmental sampling and analysis conducted, or reports to Governmental Authorities occurring, after the Closing Date, unless such Third Party Claim sampling and analysis, or such reporting, is required by Environmental Laws. The Buyer agrees, upon request by the Seller, in connection with any Remedial Action conducted hereunder, to accept and facilitate imposition of a deed restriction or other institutional controls on the subject facility; provided that such deed restriction does not materially restrict or impair the industrial activities conducted by the Buyer at the subject facility. Any obligation of the Seller to conduct any Remedial Action, or provide indemnification with respect thereto, shall be deemed satisfied upon completion of a Remedial Action in a manner that attains minimum clean-up standards (including risk-based standards as applicable) acceptable to applicable Governmental Authorities and satisfying applicable Environmental Laws. The Parties agree to reasonably cooperate with one another in connection with any matter governed hereunder and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partygenerally conduct themselves in a cost effective manner with respect thereto.
(dc) Each party The Parties shall cooperate, retain all of the books and cause records in their respective Affiliates possession that pertain to cooperatea pending claim for indemnification until such claims is finally resolved by a final, in the defense nonappealable order of a court of competent jurisdiction or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to entry by the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedParties into a settlement agreement.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Sources: Asset Purchase Agreement
Procedures. (a) The party seeking indemnification under Section 12.02 8.08 or 11.02 (the “"Indemnified Party”") agrees to give prompt notice to the party against whom indemnity is sought (the “"Indemnifying Party”") of the assertion of any claim, or the commencement of any suit, action or proceeding (“"Claim”") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely materially prejudiced the Indemnifying Party.
(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any third party (“"Third Party Claim”") and, subject to the limitations set forth in this SectionSection 11.03, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.0311.03(c), (i) 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 of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
Appears in 1 contract
Procedures. (a) The party seeking indemnification A Person that may be entitled to be indemnified under Section 12.02 this Agreement (the “Indemnified Party”) agrees to give prompt notice to ), shall promptly notify the party against whom indemnity is sought or parties liable for such indemnification (the “Indemnifying Party”) of the assertion in writing of any claimpending or threatened claim or demand that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, or the commencement of any suit, action or proceeding (such claim being a “Third Party Claim”) ), describing in reasonable detail the facts and circumstances with respect to the subject matter of which indemnity may be sought under such Section and will claim or demand; provided, that the failure to provide such notice shall not release the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any of its obligations hereunder, under this Article VI except to the extent such failure shall have adversely prejudiced the Indemnifying PartyParty is materially prejudiced by such failure, it being agreed that notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 6.01 for such representation, warranty, covenant or agreement.
(b) The Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to Section 6.04(a), the Indemnifying Party shall will be entitled entitled, by notice to participate in the defense Indemnified Party delivered within 20 Business Days of any Claim asserted by any third party (“the receipt of notice of such Third Party Claim”) and, subject to the limitations set forth in this Section, shall be entitled to control assume the defense and control of such Third Party Claim and appoint lead counsel for (at the expense of such defenseIndemnifying Party); provided, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of allows the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and to employ separate counsel of at its choice for own expense, (ii) such purpose. The fees and expenses of such separate counsel shall Third Party Claim does not seek an injunction or other equitable relief that would be paid by binding upon the Indemnified Party.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in (iii) the Indemnifying Party conducts the defense or prosecution of such Third Party Claim actively. If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 6.04(b), the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. SMHI shall, and shall furnish or cause to be furnished such recordsits Affiliates and Representatives to, information reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and testimony, records and attend such conferences, discovery proceedings, hearings, trials or appealspersonnel and witnesses, as may be reasonably requested in connection therewith.
(e) Each Indemnified appropriate for any defense of such Third Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this AgreementClaim. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the Consent of any Indemnified Party; provided, that such compromise, settlement or judgment (x) does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party and (y) by its terms unconditionally releases the Indemnified Party under any indemnification provision of this Agreement completely in respect of that loss, such Third Party Claim without any cost whatsoever to the Indemnified Party. No Indemnified Party must notify the Indemnifying Party and pay will Consent to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount entry of any such loss previously paid by judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written Consent of the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
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Procedures. (a) The party seeking indemnification under Section 12.02 8.02 (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to give prompt written notice to the party against whom indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”"CLAIM") in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party such information with respect thereto that as the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely actually prejudiced in any material respect the Indemnifying Party.
(b) The Indemnifying Party shall shall, subject to the provisions of this Section 8.03, be entitled to participate in assume the defense and control of any Claim asserted by any a third party (“Third Party Claim”"THIRD PARTY CLAIM") and, subject to the limitations set forth in this Section, but shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of allow the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled a reasonable opportunity to participate in the defense of such Third Party Claim and with its own counsel and, subject to employ separate counsel of Section 8.03(e), at its choice for such purpose. The fees and expenses own expense; provided that prior to assuming control of such separate counsel defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for any Damages resulting from such Third Party Claim as provided under this Article 8. Notwithstanding the foregoing, the Company shall be paid by have the right, but not the obligation, to assume the defense and control of any Third Party Claim if (i) the Third Party Claim relates to or arises out of any Environmental Liabilities at or affecting any Contributed Real Property, (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, or (iii) the Third Party Claim seeks an injunctive or other non-monetary relief against the Indemnified Party.
(dc) Each The party assuming the defense and control of a Third Party Claim (the "CONTROLLING PARTY") shall cooperate, and cause their respective Affiliates to cooperate, take all steps necessary in the defense or prosecution settlement of such Third Party Claim, and shall at all times diligently and promptly pursue the resolution of such Third Party Claim. The other party shall, and shall cause its controlled Affiliates to, cooperate fully with the Controlling Party in the defense of any Third Party Claim and defended by the Controlling Party, including by making relevant personnel reasonably available to the Controlling Party in connection with such defense.
(d) Notwithstanding anything in this Section 8.03 to the contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the written consent of the other party (which consent shall furnish not be unreasonably withheld or cause delayed), settle or compromise any Third Party Claim or permit a default or consent to be furnished entry of any judgment unless the claimant provides to such recordsother party an unqualified release from all liability in respect of the Third Party Claim. Notwithstanding the foregoing, information and testimonyif a bona fide settlement offer solely for money damages is made in writing by the applicable third party claimant, and attend the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party's willingness to accept the settlement offer and, subject to the applicable limitations on the Indemnifying Party's indemnification obligations under this Article 8, pay the amount called for by such conferencesoffer, discovery proceedingsand the Indemnified Party declines to accept such offer, hearingsthe Indemnified Party may continue to contest such Third Party Claim, trials free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party has an obligation to pay under this Article 8 shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnified Party declined to accept plus the aggregate Damages of the Indemnified Party relating to such Third Party Claim through the date of its rejection of the settlement offer or appeals(B) the aggregate Damages of the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party makes any payment on any Third Party Claim, as may the Indemnifying Party shall be reasonably requested in connection therewithsubrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party to any insurance benefits or other claims of the Indemnified Party with respect to such Third Party Claim.
(e) Each The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel incurred by each Indemnified Party must mitigate in accordance with applicable Law defending any loss for which such Indemnified Third Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after Claim prior to the date the Indemnifying Party has paid assumes control of the defense of the Third Party Claim or if the Indemnified Party under any indemnification provision assumes the defense of this Agreement in respect a Third Party Claim pursuant to the last sentence of that lossSection 8.03(b). After the date the Indemnifying Party assumes control of the defense of the Third Party Claim, the Indemnifying Party shall also be liable for the reasonable fees and expenses of one separate counsel (and one local counsel in each applicable jurisdiction) incurred by the Indemnified Parties in defending any Third Party must notify Claim if representation of both the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party by the same counsel would create a conflict of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is receivedinterest.
(f) Each In the event that the Indemnifying Party does not accept the defense of any Third Party Claim or the Indemnified Party assumes the defense of a Third Party Claim pursuant to the last sentence of Section 8.03(b), the Indemnified Party shall use reasonable efforts to collect inform the Indemnifying Party of material developments with respect to such Third Party Claim and to provide the Indemnifying Party with copies of material filings with any amounts available under insurance coverageGovernmental Authority in respect of such Third Party Claim that are not subject to the attorney-client or another similar privilege. An Indemnified Party shall not settle, compromise or from discharge any other Person alleged Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(g) Notwithstanding anything in this Agreement to the contrary, (i) even where on the Closing Date the Indemnified Party knows of any information that would cause one or more of the representations and warranties made by the Indemnifying Party in this Agreement to be responsibleinaccurate or untrue, for the Indemnified Party shall not be deemed to have waived (and shall continue to have) its rights to indemnification pursuant to Section 8.02 in respect thereof and (ii) the fact that a matter is covered by or dealt with in one or more of the representations and warranties made in this Agreement shall not in any Damages payable under Section 12.02respect limit or restrict (including by virtue of any applicable exception, qualifier, disclosed item, deductible or cap) Visteon's indemnification obligations with respect to the Visteon Retained Liabilities.
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Procedures. (a) The Each party seeking entitled to indemnification under this Section 12.02 2.7 (the “Indemnified Party”"INDEMNIFIED PARTY") agrees to shall give prompt notice to the party against whom indemnity is sought required to provide indemnification (the “Indemnifying Party”"INDEMNIFYING PARTY") of the assertion promptly after such Indemnified Party has actual knowledge of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of claim as to which indemnity may be sought under such Section sought, and will provide shall permit the Indemnifying Party to assume the defense of any such information with respect thereto claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the Indemnifying failure of any Indemnified Party may reasonably request. The failure to so notify the Indemnifying Party give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, except under this Agreement unless the failure to the extent give such failure shall have adversely prejudiced the notice is materially prejudicial to an Indemnifying Party.
(b) The 's ability to defend such action and provided further, that the Indemnifying Party shall be entitled not assume the defense for matters as to participate which there is a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense of any Claim asserted by any third party (“Third Party Claim”) andsuch claim or litigation, subject shall, except with the consent of each Indemnified Party, consent to the limitations set forth in this Section, shall be entitled to control the defense of such Third Party Claim and appoint lead counsel for such defense, in each case at its expense; provided that Limited Brands or its Affiliates shall control the defense of, and appoint the lead counsel in connection with, the Retained Litigation.
(c) If the Indemnifying Party shall assume the control of the defense entry of any Third Party Claim in accordance with the provisions of this Section 12.03, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned judgment or delayed) before entering enter into any settlement of such Third Party Claim, if the settlement which does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liabilities and obligations with liability in respect to such Third Party Claim claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Indemnified Partylitigation.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by the Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received.
(f) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 12.02.
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Sources: Registration Rights Agreement (Texas Roadhouse, Inc.)