Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified. (b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public. (c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense. (d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action. (e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Merger Agreement (Asv Inc /Mn/)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each Buyer will give Seller Representative prompt written notice (a “Third Party Claim Notice”) of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting commencement of any Litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company indemnification pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) Section 8.1 (any such third party action or proceeding being referred to as a "“Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The Action”).The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect any Buyer Indemnified Party's ’s right to indemnification unless except to the extent such failure has materially and adversely affected Shareholder's the applicable Seller Indemnifying Parties’ ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will Subject to Section 8.3(c), Seller Representative shall have the right and the obligation to contest and defend any such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the applicable Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained and paid by ShareholderSellers and reasonably satisfactory to Buyer. A Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such requested contest and defense and to be represented by attorneys of its own choosing. If the a Buyer Indemnified Party elects to participate in such defense, the such Buyer Indemnified Party will cooperate with Shareholder Seller Representative in the conduct of such defense. A If Seller Representative has been requested to contest and defend such Third Party Action, the applicable Buyer Indemnified Party Parties will cooperate with Shareholder Seller Representative to the extent reasonably requested by Shareholder Seller Representative in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the such Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, however, that such cooperation will not unduly disrupt the operations of the business of the such Buyer Indemnified Party or cause the such Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request requests that Shareholder Seller Representative contest and defend a Third Party ActionAction but later determines that Seller Representative is not adequately representing or, on because of a conflict of interest, may not adequately represent any interests of the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionat any time after requesting Seller Representative to do so, such a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing choosing, all at its own Sellers’ cost and expense.
(d) Shareholder Neither a Buyer Indemnified Party, on the one hand, nor Seller Representative, on the other hand, may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Partyother, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement election of an obligation or similar remedy remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article VIII, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the such Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each If any third party shall notify a party (the “Indemnified Party”) with respect to any matter which may give rise to a claim for indemnification against the other party (the “Indemnifying Party”) under this Section 10.4 for Losses of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss Party arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third “Third-Party Action"”). A Buyer , the Indemnified Party will shall give Shareholder the Indemnifying Party prompt written notice of the commencement of a Third such Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third Third-Party Action will shall be attached to such written notice. The failure to give prompt written notice will shall not affect any Buyer an Indemnified Party's ’s right to indemnification unless such failure has materially and adversely affected Shareholder's the Indemnifying Party’s ability to defend successfully such Third Third-Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will contest and defend The Indemnifying Party may participate in, and, to the extent the Indemnifying Party desires, at any time assume the defense of, such Third Third-Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by with reputable attorneys retained by Shareholderthe Indemnifying Party and at the Indemnifying Party’s expense. A Buyer Upon and after notice from the Indemnifying Party to the Indemnified Party will of its election to assume the defense of such Third-Party Action, the Indemnifying Party shall not be liable to the Indemnified Party under this Article X for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that the Indemnified Party shall be entitled at any time, at its own cost and expense, to participate in the Indemnifying Party’s conduct of such contest and defense and to be represented by attorneys of its own choosing. If the Buyer The Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will shall cooperate with Shareholder the Indemnifying Party in the Indemnifying Party’s conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder defense to the extent reasonably requested by Shareholder the Indemnifying Party in the contest and defense of such Third Third-Party Action, including but not limited to providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Third-Party Action; provided, that such cooperation will shall not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer the Indemnified Party to become public.
(c) If a Buyer Indemnified the Indemnifying Party does not request that Shareholder contest and defend a Third elect to assume the defense of any Third-Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will shall be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost choosing. For the avoidance of doubt, the costs and expense.expenses of such defense shall be included in Losses indemnifiable in accordance with and subject to the provisions of this Article X.
(d) Shareholder Neither the Indemnified Party nor the Indemnifying Party may not concede, settle or compromise any Third Third-Party Action without the consent of the Buyer Indemnified Partyother party, which consent will shall not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation withheld or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Actiondelayed.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Acquisition Agreement (Imation Corp)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, Each Indemnitee shall give the Company and their officers, directors, employees, agents, shareholders and Affiliates prompt written notice (collectively, the "Buyer Indemnified Parties"an “Indemnification Notice”) against any Loss arising from, relating to or constituting any Litigation instituted by of any third party arising out Action it has actual knowledge of that might give rise to Losses, which notice shall set forth a description of those elements of such Action of which such Indemnitee has knowledge; provided, that any delay or failure to give such Indemnification Notice shall not affect the actions or inactions indemnification obligations of the Company (or allegations thereof) with respect hereunder except to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of extent the Company is materially prejudiced by such delay or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedfailure.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of The Company shall have the intention to so contest and defend will be given right, exercisable by Shareholder written notice to the requesting Buyer Indemnified Party applicable Indemnitee(s) within 15 days after the Buyer Indemnified Party's notice of such Third Party Action thirty (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (1530) days of receipt of the request applicable Indemnification Notice, to contest select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice; provided, that the Company shall not be entitled to so select counsel or control the defense of any claim if (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnitee or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this Section 6.2(b), conduct the defense of such claim actively and diligently, (iii) such claim includes as the named parties both the Company and the applicable Indemnitee(s) and such Indemnitees reasonably determine upon the advice of counsel that representation of all such Indemnitees by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the reasonable advice of counsel for the applicable Indemnitee(s), there are one or more material defenses available to the applicable Indemnitee(s) that are not available to the Company. If the Company does not assume the defense of any third party claim in accordance with this Section 6.2(b), the applicable Indemnitee(s) may continue to defend a Third Party Action (butsuch claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense. In no event shall the Company, in connection with any eventAction or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at least five business days prior any time for all Indemnitees chosen by the Investors and/or its Affiliates, except to the date extent that local counsel, in addition to regular counsel, is required in order to effectively defend the Action.
(c) No Indemnitee shall consent to a response settlement of, or the entry of any judgment arising from, any claim for which such Indemnitee is indemnified pursuant to this Section 6.2 without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the applicable Indemnitee(s), the Company, in the defense of any such claim, shall not consent to the entry of any judgment or enter into any settlement that (i) provides for injunctive or other nonmonetary relief affecting any Indemnitee or (ii) does not include as an unconditional term thereof the giving by each claimant or plaintiff to each such Indemnitee(s) of an unconditional release of such Indemnitee(s) from all liability with respect to such Third Party Action is due Action. In any such third party claim where the Company has assumed control of the defense thereof pursuant to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filedSection 6.2(b), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless Company shall keep the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only applicable Indemnitee(s) reasonably informed as to the specific claims status of such claim at all stages thereof (including all settlement negotiations and only offers), promptly submit to such Indemnitee(s) copies of all pleadings, responsive pleadings, motions and other similar legal documents and paper received or filed in connection therewith, permit such Indemnitee(s) and their respective counsels to confer with the Company and its counsel with respect to the extent provided for in conduct of the final judgmentdefense thereof, and permit such Indemnitee(s) and their respective counsel(s) a reasonable opportunity to review all legal papers to be submitted prior to their submission.
Appears in 1 contract
Sources: Investment Agreement (Baidu, Inc.)
Third Party Action. (a) Shareholder willSubject to Section 8.3(c), jointly and severallyall claims for indemnification made under this Article VIII based upon, indemnify, defend and hold harmless each of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising resulting from, relating to related to, or constituting any Litigation instituted by any third party arising out of a Third-Party Action against an Indemnified Party shall be made in accordance with the actions or inactions following procedures: An Indemnified Party shall deliver a Third-Party Claim Notice reasonably promptly, but in any event within 30 days, after receipt by the Indemnified Party of written notice of any Third-Party Action against such Indemnified Party, or, if earlier, after becoming aware of any Third-Party Action, which Third-Party Claim Notice shall describe in reasonable detail (to the extent then known by the Indemnified Party) the facts constituting the basis for such Third-Party Action and the claim for indemnification hereunder and shall include a good faith estimate (if reasonably practicable) of the Company amount of the claimed Damages actually suffered or incurred or that could reasonably be expected to be incurred; provided, however, that the failure to provide such Third-Party Claim Notice shall not relieve the Indemnifying Party from any of its obligations under this Article VIII except and only to the extent the Indemnifying Party is adversely prejudiced by such failure. The Parties acknowledge and agree that a Third-Party Claim Notice must be delivered (whether or allegations thereofnot formal legal action shall have been commenced based upon such Third-Party Action) before the expiration of any applicable survival period set forth in Section 8.4. At any time prior to the 30th day after delivery of such Third-Party Claim Notice, the Indemnifying Party may (but shall not be obligated to), upon written notice thereof to the Indemnified Party, assume control of the defense of such Third-Party Action with counsel reasonably satisfactory to the Indemnified Party; provided, however, that (i) the Indemnifying Party may not assume control of the defense of a Third-Party Action if the Indemnified Party in good faith determines that the conduct of the defense or any proposed settlement of such Third-Party Action would reasonably be expected to involve the imposition of criminal liability against the Indemnified Party or would reasonably be expected to materially and adversely affect the Indemnified Party’s ability to conduct its business, and (ii) prior to the time the Indemnified Party is notified by the Indemnifying Party as to whether the Indemnifying Party will assume control of the defense of such Third-Party Action, the Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the Parties with respect to such Third-Party Action, including responding timely to legal process. If the period up Indemnifying Party elects not to assume, may not assume, or does not timely assume, control of such defense, the Indemnified Party shall control the defense against, or may otherwise seek to negotiate or settle such Third-Party Action; provided that, the Indemnifying Party shall reimburse the Indemnified Party for its costs and including expenses in defending such Third-Party Action upon submission of periodic bills therefor. If the Closing Date Indemnifying Party assumes control of such defense, the Indemnified Party may participate therein with counsel of its choice, at its own expense; provided that if the Indemnified Party reasonably concludes, based on advice from counsel, that (A) the Indemnifying Party and the Indemnified Party have an actual or potential conflict of interest with respect to such Third-Party Action or (B) there are legal defenses available to the Indemnified Party that are different from or may be a Loss, and which arise as a result of any breach or inaccuracy in any of additional to those available to the representations or warranties of the Company or Shareholder contained in this AgreementIndemnifying Party, the Disclosure Schedulereasonable fees, any Ancillary Agreement or any closing certificate delivered by or on behalf costs and expenses of counsel to the Company pursuant to Indemnified Party in connection therewith shall be considered “Damages” for purposes of this Agreement or any Ancillary Agreement (any such breach or inaccuracy to for which the Indemnifying Party shall be determined without regard liable; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties in each jurisdiction for which the Indemnified Parties determine counsel is required with respect to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Third-Party Action. The complaint or party controlling such defense shall keep the other papers pursuant to which party and its counsel advised of the third party commenced status of such Third Third-Party Action will be attached to such written noticeand the defense thereof and shall consider in good faith recommendations made by the other party or its counsel with respect thereto. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially respective parties and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything their counsel shall reasonably cooperate with the other parties in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will contest and defend such Third Party Action on behalf defense or prosecution of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such Third Third-Party Action, including providing copies of or reasonable access (upon reasonable notice) to all relevant correspondence, records, documents, testimony and information in connection with the booksdefense, records negotiation or settlement thereof and employees of the Buyer attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. The Indemnified Party if relevant shall not agree to the defense any settlement or compromise of, or permit a default or consent to entry of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionjudgment in, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Third-Party Action without the prior written consent of the Buyer Indemnified Party, Indemnifying Party (which consent will shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoingThe Indemnifying Party shall not agree to any settlement or compromise of, (i) if or permit a Third default or consent to entry of any judgment in, such Third-Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of that does not include a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially complete and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option unqualified release of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in from all Liability with respect thereto or that imposes any Liability on the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is without the result prior written consent of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must consent shall not be given by Shareholder within fifteen (15) days of receipt of unreasonably withheld, conditioned or delayed). Upon making any indemnification payment, the request to contest and defend a Third Indemnifying Party Action (butshall, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for of such payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the final judgmentDamages to which the payment relates, including all rights and remedies to any insurance benefits or other claims.
Appears in 1 contract
Third Party Action. (a) Shareholder will, jointly and severally, Any party (the “Indemnifying Party”) will indemnify, defend and hold harmless each of Buyer, the Company other party and their its officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer “Indemnified Parties"”) against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the Company other party (or allegations thereof) with respect to the period up to and including whether occurring prior to, on or after the Closing Date that are or may be Losses, other than those relating solely to a Lossbreach by the Buyer or the Company, and which arise as a result applicable, of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third “Third-Party Action"”). A Buyer An Indemnified Party will give Shareholder the Indemnifying Party prompt written notice of the commencement of a Third Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third Third-Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's ’s right to indemnification unless such failure has materially and adversely affected Shareholder's the Indemnifying Party’s ability to defend successfully such Third Third-Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder The Indemnifying Party will contest and defend such Third Third-Party Action on behalf of any Buyer Indemnified Party that requests that it they do so. Notice of the intention to so contest and defend will be given by Shareholder the Indemnifying Party to the requesting Buyer Indemnified Party within 15 20 business days after the Buyer Indemnified Party's ’s notice of such Third Third-Party Action (but, in any eventTable of Contents all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholderthe Indemnifying Party. A Buyer An Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder the Indemnifying Party in the conduct of such defense. A Buyer An Indemnified Party will cooperate with Shareholder the Indemnifying Party to the extent reasonably requested by Shareholder the Indemnifying Party in the contest and defense of such Third Third-Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Third-Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer an Indemnified Party does reasonably determines that the Indemnifying Party is not request that Shareholder contest and defend adequately representing or, because of a Third Party Actionconflict of interest, on may not adequately represent any interests of the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionat any time after requesting the Indemnifying Party to do so, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own the Indemnifying Party’s cost and expense.
(d) Shareholder Neither an Indemnified Party nor the Indemnifying Party may not concede, settle or compromise any Third Third-Party Action without the consent of the Buyer Indemnified Partyother party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Master Asset Purchase Agreement (Franklin Covey Co)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each Buyers will give Sellers’ Representative prompt written notice (a “Third Party Claim Notice”) of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting commencement of any Litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company indemnification pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) Section 9.1 (any such third party action or proceeding being referred to as a "“Third Party Action"”). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect any Buyer Indemnified Party's ’s right to indemnification unless except to the extent such failure has actually and materially and adversely affected Shareholder's prejudiced the Sellers’ Representative’s ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 Buyers will deliver to the contrary, written notice Sellers’ Representative copies of commencement of a all additional documents reasonably related to or required to defend such Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedpromptly after receipt thereof.
(b) Shareholder will Subject to Section 9.3(c), Sellers’ Representative shall have 30 days after its receipt of a complete Third Party Claim Notice to notify the Buyer Indemnified Party that the Sellers’ Representative has elected to contest and defend any such Third Party Action on behalf of any the applicable Buyer Indemnified Party; provided, however, that the Sellers’ Representative shall not have the right to assume the defense of a Third-Party Action to the extent that: (i) such Third Party Action seeks the issuance of an injunction, the specific performance of an obligation or similar equitable remedy, (ii) such Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party that requests that it do so. Notice of is entitled to indemnification pursuant to this Article IX, or (iii) if the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice subject matter of such Third Party Action (but, in any event, at least five business days prior relates to the date that ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business of any Buyer Indemnified Party other than as a response result of monetary damages for which it would be entitled to indemnification under this Agreement. If Sellers’ Representative contests and defends such Third Party Action is due to be filedAction, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained and paid by Shareholderthe STR Sellers and STRG Seller and reasonably satisfactory to Buyers. A Any Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing; provided, however, that, subject to this Section 9.3, the Sellers’ Representative shall control the defense of any such contest. If Sellers’ Representative contests and defends such Third Party Action, the applicable Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party Parties (i) will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder Sellers’ Representative to the extent reasonably requested by Shareholder Sellers’ Representative in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the such Buyer Indemnified Party if relevant to the defense of such Third Party Action and the STR Sellers and STRG Seller will not be liable to the Buyer Indemnified Party for any legal expenses incurred by the Buyer Indemnified Party in connection with the defense thereof (subject to this Section 9.3); and (ii) will not admit any liability with respect to, or settle, discharge or compromise such Third Party Action without the Sellers’ Representative’s prior written consent which shall not be unreasonably withheld, except as otherwise contemplated by Section 9.3(d). If the Sellers’ Representative assumes the defense of a Third Party Action, the Sellers’ Representative shall not concede, settle or compromise such Third Party Action without Buyers’ prior written consent; provided, however, that such cooperation will the consent of Buyers shall not unduly disrupt be required if (i) the operations STR Sellers and STRG Seller pay the full amount of the business liability in connection with such Third Party Action, (ii) such settlement, compromise or discharge includes a full, complete and unconditional release of Buyers and their Affiliates from further liability with respect to such Third Party Action, and (iii) such settlement, compromise or discharge does not require any commitment or admission by Buyers or any of their Affiliates of any wrongdoing or violation of Law or the rights of any Person (other than the making of any payments that are paid in full by the applicable Seller Indemnifying Parties as provided in the foregoing clause (i)) (the conditions set forth in clauses (i), (ii) and (iii), the “Required Conditions”).
(c) If Sellers’ Representative chooses to contest and defend a Third Party Action but (i) the applicable Buyer Indemnified Party reasonably determines in good faith, based upon advice of counsel, that an actual conflict of interest exists between the applicable Seller Indemnifying Parties and such Buyer Indemnified Party with respect to an issue that is significant to the defense of a Third Party Action such that the applicable Seller Indemnifying Parties (or the Sellers’ Representative on their behalf) could not adequately represent the applicable interests of the Buyer Indemnified Party or cause (ii) upon petition by the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified the appropriate Governmental Entity issues a final, non-appealable ruling that the applicable Seller Indemnifying Parties (or the Sellers’ Representative on their behalf) have failed or are failing to conduct the defense of a Third Party Action in its sole discretiongood faith, such then, in each case of clauses (i) and (ii), a Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing that are reasonably satisfactory to Sellers’ Representative, all at its own the STR Sellers’ and STRG Seller’ cost and expense.
(d) Shareholder If the Sellers’ Representative does not choose to contest and defend the Third-Party Action within the timeframe provided for in this Section 9.3, or the Sellers’ Representative is not entitled to assume the Third-Party Defense in accordance with this Section 9.3, the applicable Buyer Indemnified Party will be entitled to contest and defend the Third-Party Action, and such fees and costs shall be indemnifiable Buyer Losses hereunder; provided, however, that (i) the Sellers’ Representative may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third-Party Action but the Buyer Indemnified Party shall control the investigation, defense and settlement, subject to the provisions herein; and (ii) the Sellers’ Representative shall cooperate in good faith in such defense. A Buyer Indemnified Party may not concede, settle or compromise any Third Party Action without the prior written consent of Sellers’ Representative; provided, however, that the Buyer Indemnified Party, which consent will of Sellers’ Representative shall not be unreasonably withheld. Notwithstanding the foregoing, required if (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement performance of an obligation or similar remedy equitable remedy, (ii) if a Third Party Action seeks damages in excess of the amount by which a Buyer Indemnified Party is entitled to indemnification pursuant to this Article IX, or (iiiii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified PartyParty other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, at the option of the Buyer Indemnified Party, the such Buyer Indemnified Party alone will be entitled to settle such Third Party Action Action, but the STR Sellers and STRG Seller will not be bound by any determination in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle connection with such Third Party Action for purposes of this Agreement or any concession, settlement or compromise without the consent of Sellers’ Representative until the STR Sellers’ and such election STRG Seller’ liability is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers otherwise determined in contesting and/or defending such Third Party Actionaccordance with this Article IX.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the Company The Indemnifying Party (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or Stockholder Representative on behalf of any or all Stockholder Indemnifying Parties) shall have the Company pursuant right to assume control of the defense of, settle, or otherwise dispose of such third party action on such terms as it deems appropriate; provided, however, that:
(1) The Indemnified Party shall be entitled, at its own expense, to participate in the defense of such third party action; provided, however, that the Indemnifying Party shall pay the attorneys’ fees of the Indemnified Party if (i) the employment of separate counsel shall have been authorized in a writing making express reference to this Agreement subsection and signed by such Indemnifying Party in connection with the defense of such third party action, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to have charge of such third party action, (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (iv) the Indemnified Party’s counsel shall in good faith have advised the Indemnified Party in writing, with a copy delivered to the Indemnifying Party, that there is a conflict of interest that would make it reasonable to determine that it is inappropriate under applicable standards of professional conduct to have common counsel;
(2) The Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into or making any Ancillary Agreement (any such breach settlement, compromise, admission, or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any acknowledgment of the validity of such third party action or proceeding being referred any liability in respect thereof if, pursuant to or as a "Third Party Action"). A Buyer result of such settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the Indemnified Party will give Shareholder prompt written notice or if, in the opinion of the commencement Indemnified Party, such settlement, compromise, admission, or acknowledgment would have an adverse effect on its business;
(3) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a Third release from all liability in respect of such third-party action;
(4) The Indemnifying Party Action. The complaint shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or other papers pursuant settlement, compromise, admission, or acknowledgment of any third party action: (i) as to which the third party commenced such Third Indemnifying Party Action will be attached fails to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to assume the contrary, written notice defense within a reasonable length of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder (ii) to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action party action seeks the issuance of an injunction, or other equitable relief against the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have (iii) if the Indemnifying Party does not irrevocably agree in writing that no obligation whatsoever damages arising out of or related to indemnify such claim or demand are obligations of the Buyer Indemnified Party for pursuant hereto and that any Loss it suffers in contesting and/or defending damages arising out of or related to such Third Party Action.
(e) Notwithstanding anything provided for claim or demand are within the scope of and may be subject to indemnification hereunder, subject to the indemnification limitations set forth in this Section 8.5 10.03; provided, however, that the Indemnified Party shall make no settlement, compromise, admission, or acknowledgment that would give rise to liability on the part of any Indemnifying Party without the prior written consent of such Indemnifying Party;
(5) The parties hereto shall extend reasonable cooperation in connection with the defense of any third party action pursuant to this Section 10.03 and, in connection therewith, shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested, subject in all instances to appropriate agreements respecting confidentiality and use, such as, but not limited to, protective orders, as is reasonable under the circumstances; and
(6) The parties agree that the provisions of this Section 10.03(b)(iii)(D) shall not apply to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgmentSpecial Indemnification Matters.
Appears in 1 contract
Sources: Merger Agreement (NCR Corp)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, Each Indemnitee shall give the Company and their officers, directors, employees, agents, shareholders and Affiliates prompt written notice (collectively, the "Buyer Indemnified Parties"an “Indemnification Notice”) against any Loss arising from, relating to or constituting any Litigation instituted by of any third party arising out Action it has actual knowledge of that might give rise to Losses, which notice shall set forth a description of those elements of such Action of which such Indemnitee has knowledge; provided, that any delay or failure to give such Indemnification Notice shall not affect the actions or inactions indemnification obligations of the Company (or allegations thereof) with respect hereunder except to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of extent the Company is materially prejudiced by such delay or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedfailure.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of The Company shall have the intention to so contest and defend will be given right, exercisable by Shareholder written notice to the requesting Buyer Indemnified Party applicable Indemnitee(s) within 15 days after the Buyer Indemnified Party's notice of such Third Party Action thirty (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (1530) days of receipt of the request applicable Indemnification Notice, to contest select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice; provided, that the Company shall not be entitled to so select counsel or control the defense of any claim if (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnitee or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this Section 6.2(b), conduct the defense of such claim actively and diligently, (iii) such claim includes as the named parties both the Company and the applicable Indemnitee(s) and such Indemnitees reasonably determine upon the advice of counsel that representation of all such Indemnitees by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the reasonable advice of counsel for the applicable Indemnitee(s), there are one or more material defenses available to the applicable Indemnitee(s) that are not available to the Company. If the Company does not assume the defense of any third party claim in accordance with this Section 6.2(b), the applicable Indemnitee(s) may continue to defend a Third Party Action (butsuch claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense. In no event shall the Company, in connection with any eventAction or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at least five business days prior any time for all Indemnitees chosen by the Investors and/or its Affiliates, except to the date extent that local counsel, in addition to regular counsel, is required in order to effectively defend the Action.
(c) No Indemnitee shall consent to a response settlement of, or the entry of any judgment arising from, any claim for which such Indemnitee is indemnified pursuant to this Section 6.2 without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the applicable Indemnitee(s), the Company, in the defense of any such claim, shall not consent to the entry of any judgment or enter into any settlement that (i) provides for injunctive or other nonmonetary relief affecting any Indemnitee or (ii) does not include as an unconditional term thereof the giving by each claimant or plaintiff to each such Indemnitee(s) of an unconditional release of such Indemnitee(s) from all liability with respect to such Third Party Action is due Action. In any such third party claim where the Company has assumed control of the defense thereof pursuant to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filedSection 6.2(b), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless Company shall keep the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only applicable Indemnitee(s) reasonably informed as to the specific claims status of such claim at all stages thereof (including all settlement negotiations and only offers), promptly submit to such Indemnitee(s) copies of all pleadings, responsive pleadings, motions and other similar legal documents and paper received or filed in connection therewith, permit such Indemnitee(s) and their respective counsels to confer with the Company and its counsel with respect to the extent provided for in conduct of the final judgmentdefense thereof, and permit such Indemnitee(s) and their respective counsel(s) a reasonable opportunity to review all legal papers to be submitted prior to their submission.
Appears in 1 contract
Third Party Action. (a) Shareholder willFrom the Closing until the expiration of the Survival Period, jointly the Selling Shareholders and severallythe Surviving Corporation, as applicable (the “Indemnifying Party”), will indemnify, defend and hold harmless each of Buyer, the Company Indemnified Parties and their officersthe Parent Indemnified Parties, directors, employees, agents, shareholders and Affiliates as applicable (collectively, the "Buyer “Indemnified Parties") ”), against any Loss Damages arising from, relating to or constituting from any Litigation litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company Damages arising pursuant to this Agreement Section 15.2(a) or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality"15.3(a), "in all material respects" or similar qualification) as applicable (any such third party action or proceeding being referred to as a "“Third Party Action"”). A Buyer An Indemnified Party will give Shareholder the Indemnifying Party prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure In the event that (i) a Indemnified Party does not deliver to give the Indemnifying Party prompt written notice will not affect any Buyer Indemnified Party's right of a Third Party Claim promptly after commencement or (ii) fails to indemnification unless such failure has materially and adversely affected Shareholder's ability attach the entire complaint or all of the other papers pursuant to defend successfully which the third party commenced such Third Party Action. Notwithstanding anything in , each as required by this Section 8.5 15.4(a), then the Indemnifying Party’s obligation to indemnify the Indemnified Party pursuant to this Section 15.4(a) shall be reduced to the contraryextent the Indemnified Party’s failure to provide prompt, accurate and complete written notice of commencement of a Third Party Action to Shareholder must be given within has prejudiced the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedIndemnifying Party.
(b) Shareholder The Indemnifying Party will be entitled to contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do soParty. Notice of the intention to so contest and defend will be given by Shareholder the Indemnifying Party to the requesting Buyer Indemnified Party within 15 days 20 Business Days after the Buyer Indemnified Party's ’s notice of such Third Party Action (but, in any eventall events, at least five business days Business Days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholderthe Indemnifying Party. A Buyer An Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder the Indemnifying Party in the conduct of such defense. A Buyer An Indemnified Party will cooperate with Shareholder the Indemnifying Party to the extent reasonably requested by Shareholder the Indemnifying Party in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Neither the Indemnified Party does not request that Shareholder contest and defend a Third nor the Indemnifying Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Partyother party, which consent consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Third Party Action. (a) Shareholder will, jointly and severally, Any party (the “Indemnifying Party”) will indemnify, defend and hold harmless each of Buyer, the Company other party and their its officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer “Indemnified Parties"”) against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising out of the actions or inactions of the Company other party (or allegations thereof) with respect to the period up to and including whether occurring prior to, on or after the Closing Date that are or may be Losses, other than those relating solely to a Lossbreach by the Buyer or the Company, and which arise as a result applicable, of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third “Third-Party Action"”). A Buyer An Indemnified Party will give Shareholder the Indemnifying Party prompt written notice of the commencement of a Third Third-Party Action. The complaint or other papers pursuant to which the third party commenced such Third Third-Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's ’s right to indemnification unless such failure has materially and adversely affected Shareholder's the Indemnifying Party’s ability to defend successfully such Third Third-Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder The Indemnifying Party will contest and defend such Third Third-Party Action on behalf of any Buyer Indemnified Party that requests that it they do so. Notice of the intention to so contest and defend will be given by Shareholder the Indemnifying Party to the requesting Buyer Indemnified Party within 15 20 business days after the Buyer Indemnified Party's ’s notice of such Third Third-Party Action (but, in any event48 Table of Contents all events, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Third-Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholderthe Indemnifying Party. A Buyer An Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder the Indemnifying Party in the conduct of such defense. A Buyer An Indemnified Party will cooperate with Shareholder the Indemnifying Party to the extent reasonably requested by Shareholder the Indemnifying Party in the contest and defense of such Third Third-Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Third-Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
Action (c) If a Buyer an Indemnified Party does reasonably determines that the Indemnifying Party is not request that Shareholder contest and defend adequately representing or, because of a Third Party Actionconflict of interest, on may not adequately represent any interests of the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionat any time after requesting the Indemnifying Party to do so, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own the Indemnifying Party’s cost and expense.
(d) Shareholder Neither an Indemnified Party nor the Indemnifying Party may not concede, settle or compromise any Third Third-Party Action without the consent of the Buyer Indemnified Partyother party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Master Asset Purchase Agreement
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, Each Indemnitee shall give the Company and their officers, directors, employees, agents, shareholders and Affiliates prompt written notice (collectively, the "Buyer Indemnified Parties"an “Indemnification Notice”) against any Loss arising from, relating to or constituting any Litigation instituted by of any third party arising out Action it has actual knowledge of that might give rise to Losses, which notice shall set forth a description of those elements of such Action of which such Indemnitee has knowledge; provided, that any delay or failure to give such Indemnification Notice shall not affect the actions or inactions indemnification obligations of the Company (or allegations thereof) with respect hereunder except to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of extent the Company is materially prejudiced by such delay or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a "Third Party Action"). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 to the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedfailure.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of The Company shall have the intention to so contest and defend will be given right, exercisable by Shareholder written notice to the requesting Buyer Indemnified Party applicable Indemnitee(s) within 15 days after the Buyer Indemnified Party's notice of such Third Party Action thirty (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretion, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (1530) days of receipt of the request applicable Indemnification Notice, to contest select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice; provided, that the Company shall not be entitled to so select counsel or control the defense of any claim if (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnitee or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this Section 6.2(b), conduct the defense of such claim actively and diligently, (iii) such claim includes as the named parties both the Company and the applicable Indemnitee(s) and such Indemnitees reasonably determine upon the advice of counsel that representation of all such Indemnitees by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the reasonable advice of counsel for the applicable Indemnitee(s), there are one or more material defenses available to the applicable Indemnitee(s) that are not available to the Company. If the Company does not assume the defense of any third party claim in accordance with this Section 6.2(b), the applicable Indemnitee(s) may continue to defend a Third Party Action (butsuch claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense. In no event shall the Company, in connection with any eventAction or separate but substantially similar Actions arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at least five business days prior to any time for all Indemnitees chosen by the date that a response to such Third Party Action is due to be filedInvestors and/or its Affiliates, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only except to the extent provided for that local counsel, in addition to regular counsel, is required in order to effectively defend the final judgmentAction.
Appears in 1 contract
Sources: Investment Agreement (iQIYI, Inc.)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising When a Claim arises out of the actions or inactions claim of the Company (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a (the "Third Party Action"). A Buyer Indemnified , including any audit or liability for sales, use and transfer Taxes or other Taxes arising out of the consummation of the transactions contemplated hereby (while any notice or audit relating to Taxes shall be delivered promptly to the Indemnifying Party, such notice or audit shall, while constituting a Claim, not be subject to the 180 and 250 time limitations set forth in Section 6.05(b) until an assessment has been issued by the third party), then the party receiving notice of the Claim shall promptly provide notice to the other parties, and the Indemnifying Party will give Shareholder may, at its expense, assume the defense thereof by prompt written notice of to the commencement of a Indemnified Party. If the Indemnifying Party cannot or does not elect this option, the Indemnified Party shall defend or settle the Third Party Action. The complaint or other papers pursuant to which Where the third party commenced such Third Indemnifying Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability undertaken to defend successfully such the Third Party Action. Notwithstanding anything in Section 8.5 to , (1) the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any timemay participate, at its own cost and expense, to participate in such contest any and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder all proceedings related to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational and shall be entitled to receive copies of all notices and pleadings or monetary risk to Buyer other submissions in any judiciary or regulatory proceeding; and (2) there shall be no settlement requiring any action on the part of the Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionother than payment of the settlement payment, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will shall not be unreasonably withheld. Notwithstanding All parties to this Agreement shall cooperate in the foregoing, (i) if a defense of Third Party Action seeks the issuance of an injunctionActions and shall furnish such records, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially information and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Partytestimony, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in contesting and/or defending such Third Party Actionconnection therewith.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Franchise Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each Buyer will give Seller prompt written notice (a “Third Party Claim Notice”) of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting commencement of any Litigation instituted by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect for which any Buyer Indemnified Party reasonably believes that it is entitled to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company indemnification pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) Section 8.1 (any such third party action or proceeding being referred to as a "“Third Party Action"”). A Buyer Indemnified Party will give Shareholder prompt written notice of the commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written noticeThird Party Claim Notice. The failure to give prompt written notice promptly deliver a Third Party Claim Notice will not affect any Buyer Indemnified Party's ’s right to indemnification unless except to the extent such failure has materially and adversely affected Shareholder's the applicable Seller Indemnifying Parties’ ability to defend successfully such Third Party Action. Notwithstanding anything in Section 8.5 Action [*] Please refer to the contrary, written notice footnote 1 on page 1 of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifiedExhibit 2.1.
(b) Shareholder Upon receipt of a Third Party Claim Notice involving a Third Party Action, the Indemnifying Party will contest and have the right to defend such the Indemnified Party against the Third Party Action on behalf with counsel reasonably satisfactory to the Indemnified Party so long as (i) within 20 days after receipt of such notice, the Indemnifying Party notifies the Indemnified Party in writing that the Indemnifying Party will, subject to the limitations of Section 8.1(c), indemnify the Indemnified Party from and against any Buyer Losses the Indemnified Party may incur relating to or arising out of the Third-Party Action, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that requests that it do so. Notice of the intention Indemnifying Party will have the financial resources to so contest defend against the Third-Party Action and defend will be given by Shareholder fulfill its indemnification obligations hereunder, (iii) the Indemnifying Party is not a party to the requesting Buyer Proceeding (to the extent commenced) or the Indemnified Party within 15 days after has determined in good faith that there would be no conflict of interest or other inappropriate matter associated with joint representation, (iv) the Buyer Indemnified Party's notice of such Third Party Action does not involve, and is not likely to involve, any claim by any Governmental Entity, (butv) the Third Party Action involves only money damages and does not seek an injunction or other equitable relief, in any event(vi) settlement of, at least five business days prior to or an adverse judgment with respect to, the date that a response to such Third Party Action is due not, in the good faith judgment of the Indemnified Party, likely to be filedestablish a precedential custom or practice adverse to the continuing business interests of the Indemnified Party, so long as Shareholder has received notice at least 10 days before a response to such (vii) the Indemnifying Party conducts the defense of the Third Party Action is due to be filed). Such contest actively and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer diligently and (viii) the Indemnifying Party keeps the Indemnified Party will be entitled at any timeapprised of all material developments, at its own cost including settlement offers, with respect to the Third Party Action and expense, permits the Indemnified Party to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder to the extent reasonably requested by Shareholder in the contest and defense of such the Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer So long as the Indemnifying Party is conducting the defense of the Third-Party Action in accordance with Section 8.3(b), (i) the Indemnifying Party will not be responsible for any attorneys’ fees incurred by the Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on regarding the basis that such Third Party Action imposes a significant reputational or monetary risk (other than attorneys’ fees incurred prior to Buyer Indemnified the Indemnifying Party, as determined by Buyer ’s assumption of the defense pursuant to Section 8.3(b)) and (ii) neither the Indemnified Party in its sole discretion, such Buyer Indemnified nor the Indemnifying Party will be entitled consent to conduct its own defense and the entry of any judgment or enter into any settlement with respect to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any the Third Party Action without the prior written consent of the Buyer Indemnified Partyother party, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding If the foregoing, (i) if Indemnified Party reasonably desires to consent to the entry of judgment with respect to or to settle a Third Party Action seeks but the issuance of an injunctionIndemnifying Party refuses, then the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Indemnifying Party Action relates will be responsible for all Losses with respect to the ongoing business of any Buyer Indemnified Party, which such Third Party Action, if decided against without regard to the Cap.
(d) If any Buyer Indemnified Party, would materially and adversely affect condition in Section 8.3(b) is or becomes unsatisfied or the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Indemnifying Party alone will be entitled fails to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not elect to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at (i) the sole cost and expense of such Buyer Indemnified PartyParty may defend against, and Shareholder shall have no obligation whatsoever consent to indemnify the Buyer entry of any judgment or enter into any settlement with respect to, the Third Party Action in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (ii) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically (but no less often than monthly) for any Loss it suffers in contesting and/or the costs of defending such against the Third Party Action, including attorneys’ fees and expenses, and (iii) the Indemnifying Party will remain responsible for any Losses the Indemnified Party may incur relating to or arising out of the Third Party Action to the fullest extent provided in this Article VIII.
(e) Notwithstanding anything provided for in this Section 8.5 The failure of a Party to keep the contrary, if Shareholder notifies a Buyer Indemnified other Party that Shareholder disputes reasonably informed regarding the assertion that Shareholder has a duty to indemnify, defend, progress and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a status of the defense of any Third Party Action on behalf of a Buyer Indemnified shall not release the Indemnifying Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest from its, his or her obligations under this Article VIII, unless, and defend a Third Party Action (but, in any event, at least five business days prior then solely to the date extent, such other Party demonstrates that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgmentbeen materially prejudiced by such failure.
Appears in 1 contract
Third Party Action. (a) Shareholder will, jointly and severally, indemnify, defend and hold harmless each of Buyer, the Company and their officers, directors, employees, agents, shareholders and Affiliates (collectively, the "Buyer Indemnified Parties") against any Loss arising from, relating to or constituting any Litigation instituted by any third party arising When a Claim arises out of the actions or inactions claim of the Company (or allegations thereof) with respect to the period up to and including the Closing Date that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) (any such third party action or proceeding being referred to as a (the "Third Party Action"). A Buyer Indemnified , including any audit or liability for sales, use and transfer Taxes or other Taxes arising out of the consummation of the transactions contemplated hereby (while any notice or audit relating to Taxes shall be delivered promptly to the Indemnifying Party, such notice or audit shall, while constituting a Claim, not be subject to the 180 and 250 day time limitations set forth in Section 6.05(b) until an assessment has been issued by the third party), then the party receiving notice of the Claim shall promptly provide notice to the other parties, and the Indemnifying Party will give Shareholder may, at its expense, assume the defense thereof by prompt written notice of to the commencement of a Indemnified Party. If the Indemnifying Party cannot or does not elect this option, the Indemnified Party shall defend or settle the Third Party Action. The complaint or other papers pursuant to which Where the third party commenced such Third Indemnifying Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right to indemnification unless such failure has materially and adversely affected Shareholder's ability undertaken to defend successfully such the Third Party Action. Notwithstanding anything in Section 8.5 to , (1) the contrary, written notice of commencement of a Third Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specified.
(b) Shareholder will contest and defend such Third Party Action on behalf of any Buyer Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder to the requesting Buyer Indemnified Party within 15 days after the Buyer Indemnified Party's notice of such Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholder. A Buyer Indemnified Party will be entitled at any timemay participate, at its own cost and expense, to participate in such contest any and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder in the conduct of such defense. A Buyer Indemnified Party will cooperate with Shareholder all proceedings related to the extent reasonably requested by Shareholder in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer Indemnified Party does not request that Shareholder contest and defend a Third Party Action, on the basis that such Third Party Action imposes a significant reputational and shall be entitled to receive copies of all notices and pleadings or monetary risk to Buyer other submissions in any judiciary or regulatory proceeding; and (2) there shall be no settlement requiring any action on the part of the Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionother than payment of the settlement payment, such Buyer Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own cost and expense.
(d) Shareholder may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified Party, which consent will shall not be unreasonably withheld. Notwithstanding All parties to this Agreement shall cooperate in the foregoing, (i) if a defense of Third Party Action seeks the issuance of an injunctionActions and shall furnish such records, the specific enforcement of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially information and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), and, if the Buyer Indemnified Party elects not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost and expense of such Buyer Indemnified Partytestimony, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in contesting and/or defending such Third Party Actionconnection therewith.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Third Party Action. (a) Shareholder willEach of (i) Buyer, on one hand, and (ii) Sellers, jointly and severally, on the other hand (each an “Indemnifying Party”), agree to indemnify, defend and hold harmless each of Buyer, the Company other party and their respective officers, directors, employees, agents, shareholders agents and Affiliates stockholders (collectively, the "Buyer “Indemnified Parties"Party”) against any Loss arising fromfrom a breach of the representation and warranties of the other party (the “Indemnifying Party’) contained in this Agreement, relating to or constituting any Litigation litigation, action or proceeding (including any governmental investigation or inquiry) instituted or threatened by any third party arising out of the actions or inactions of the Company (or allegations thereof) with respect to the period up to and including the Closing Date (as it pertains to the Sellers) and for the period after the Closing Date (as it pertains to the Buyer) that are or may be a Loss, and which arise as a result of any breach or inaccuracy in any of the representations or warranties of the Company or Shareholder contained in this Agreement, the Disclosure Schedule, any Ancillary Agreement or any closing certificate delivered by or on behalf of the Company pursuant to this Agreement or any Ancillary Agreement (any such breach or inaccuracy to be determined without regard to any qualification for "materiality", "in all material respects" or similar qualification) Losses (any such third party action or proceeding being referred to as a "“Third Party Action"”). A Buyer The Indemnified Party will give Shareholder the Indemnifying Party prompt written notice of the any claim, notice or commencement of a Third Party Action. The complaint or other papers pursuant to which the third party commenced such Third Party Action will be attached to such written notice. The failure to give prompt written notice will not affect any Buyer Indemnified Party's right ’s rights to indemnification unless such failure has materially and adversely affected Shareholder's Indemnifying Party’s ability to defend successfully such Third Party Action. Notwithstanding anything Action and in Section 8.5 such event, only to the contrary, written notice of commencement of a Third extent it caused the Indemnifying Party Action to Shareholder must be given within the same applicable time period as specified in subsection 8.4(a). Shareholder will not have any liability under this Section 8.5 unless the written notices required by the preceding sentence are given by the date specifieddamage or loss.
(b) Shareholder will The Indemnifying Party shall contest and defend such Third Party Action on behalf of any Buyer the Indemnified Party that requests that it do so. Notice of the intention to so contest and defend will be given by Shareholder the Indemnifying Party to the requesting Buyer Indemnified Party within 15 twenty (20) business days after the Buyer Indemnified Party's ’s notice of such Third Party Action (but, in any eventall events, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed). Such contest and defense will be conducted by reputable attorneys retained by Shareholderthe Indemnifying Party that are satisfactory to the Indemnified Party. A Buyer The Indemnified Party will be entitled at any time, at its own cost and expense, to participate in such contest and defense and to be represented by attorneys of its own choosing. If the Buyer Indemnified Party elects to participate in such defense, the Buyer Indemnified Party will cooperate with Shareholder the Indemnifying Party in the conduct of such defense. A Buyer The Indemnified Party will cooperate with Shareholder the Indemnifying Party to the extent reasonably requested by Shareholder the Indemnifying Party in the contest and defense of such Third Party Action, including providing reasonable access (upon reasonable notice) to the books, records and employees of the Buyer Indemnified Party if relevant to the defense of such Third Party Action; provided, that such cooperation will not unduly disrupt the operations of the business of the Buyer Indemnified Party or cause the Buyer Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Buyer Indemnified Party to become public.
(c) If a Buyer an Indemnified Party does reasonably determines that the Indemnifying Party is not request that Shareholder contest and defend adequately representing or, because of a Third Party Actionconflict of interest, on may not adequately represent any interests of the basis that such Third Party Action imposes a significant reputational or monetary risk to Buyer Indemnified Party, as determined by Buyer Indemnified Party in its sole discretionat any time after requesting the Indemnifying Party to do so, such Buyer an Indemnified Party will be entitled to conduct its own defense and to be represented by attorneys of its own choosing all at its own the Indemnifying Party’s cost and expense.
(d) Shareholder Neither the Indemnified Party nor the Indemnifying Party may not concede, settle or compromise any Third Party Action without the consent of the Buyer Indemnified other Party, which consent consents will not be unreasonably withheld. Notwithstanding the foregoing, (i) if a Third Party Action seeks the issuance of an injunction, the specific enforcement election of an obligation or similar remedy or (ii) if the subject matter of a Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Third Party Action, if decided against any Buyer Indemnified Party, would materially and adversely affect the ongoing business or reputation of any Buyer Indemnified Party, at the option of the Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Third Party Action in the first instance, at its own cost and expense (without being indemnified by Shareholder for any settlement payments or Loss of any kind), instance and, if the Buyer Indemnified Party elects does not to settle such Third Party Action and such election is the result of Buyer unreasonably withholding its consent to such settlement, then the Buyer Indemnified Party shall itself be solely obligated to contest and defend such Third Party Action, at the sole cost Indemnifying Party will then have the right to contest and expense of such Buyer Indemnified Party, and Shareholder shall have no obligation whatsoever to indemnify the Buyer Indemnified Party for any Loss it suffers in contesting and/or defending defend (but not settle) such Third Party Action.
(e) Notwithstanding anything provided for in this Section 8.5 to the contrary, if Shareholder notifies a Buyer Indemnified Party that Shareholder disputes the assertion that Shareholder has a duty to indemnify, defend, and hold harmless such Buyer Indemnified Party under this Section 8.5, after Shareholder has received a request to contest and defend a Third Party Action on behalf of a Buyer Indemnified Party (which notice of dispute must be given by Shareholder within fifteen (15) days of receipt of the request to contest and defend a Third Party Action (but, in any event, at least five business days prior to the date that a response to such Third Party Action is due to be filed, so long as Shareholder has received notice at least 10 days before a response to such Third Party Action is due to be filed), from a Buyer Indemnified Party), then Shareholder has no duty to indemnify, defend, and hold harmless the Buyer Indemnified Party until and unless the Buyer Indemnified Party has sought judicial recourse and has obtained a final judgment declaring that Shareholder has a duty to so indemnify, defend, and hold harmless the Buyer Indemnified Party, but only as to the specific claims and only to the extent provided for in the final judgment.
Appears in 1 contract