Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii). (b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. (ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlas Financial Holdings, Inc.), Stock Purchase Agreement (Atlas Financial Holdings, Inc.)
Third Party Claims. If a claim shall be asserted or litigation shall be commenced (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any such a claim or demand made by, or any other Action instituted by, any Person not a Party litigation being referred to this Agreement (herein as a “Third Third-Party Claim”) in respect for which indemnification under this Agreement shall be sought, the party entitled to indemnification hereunder (“Indemnitee”) shall give notice thereof to the party required to indemnify such party hereunder (“Indemnitor”) as promptly as practicable after Indemnitee’s receipt of which indemnity may be sought under Section 7.1 in accordance with such assertion of a claim or the notice procedures set forth in Section 7.2; providedcommencement of such litigation (it being agreed, however, that no delay on the part of the Indemnitee in notifying the Indemnitor of the Third-Party Claim will relieve the Indemnitor from any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, obligation under this Agreement except to the extent that the Indemnifying delay materially prejudices the defense of the Third-Party will have been materially prejudiced as a result Claim by the Indemnitor). Indemnitor may, at its sole cost and expense, upon written notice given to Indemnitee within twenty (20) days after its receipt of Indemnitee’s notice under this Section 5, assume the defense, with counsel reasonably satisfactory to Indemnitee, of any such delayThird-Party Claim. From and after If Indemnitor assumes the delivery defense of a Indemnification Notice with respect to a Third any such Third-Party Claim, the Indemnified obligations of Indemnitor hereunder as to such Third-Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not limited to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate taking all steps necessary in the defense or settlement thereof and, if it so elects, and to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold holding Indemnitee harmless the Indemnified Party from, against and in respect of any and all Losses incurred caused by or suffered arising out of any settlement approved by Indemnitor or any judgment in connection with such Third-Party Claim. Except with the prior written consent of Indemnitee, Indemnitor shall not consent to the settlement or entry of any judgment arising from any such Third-Party Claim which in each case does not include as an unconditional term thereof the giving by the Indemnified Party claimant or plaintiff, as the case may be, to Indemnitee of an unconditional release from all liability in respect thereof unless Indemnitor has actually paid the full amount of any such settlement or judgment. Indemnitee shall cooperate with Indemnitor as necessary to the extent arising from such Third conduct of the defense of, and shall be entitled to receive copies of all pleadings and other material papers in connection with, any Third-Party Claim. If Indemnitor does not assume the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third defense of any Third-Party Claim, Indemnitee may defend the same in such manner as it may deem appropriate, including but not limited to settling such Third-Party Claim, after giving reasonable notice of the same to Indemnitor, on such terms as Indemnitee may deem appropriate, and Indemnitor will have promptly reimburse Indemnitee in accordance with the right provisions of this Section 5, subject to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable having liability hereunder. Anything contained in this Section 5 to the Indemnified Party. Once the Indemnifying Party has duly assumed contrary notwithstanding: (i) Indemnitor shall not be entitled to assume the defense of a Third any Third-Party ClaimClaim if the Third-Party Claim seeks an order, injunction or other equitable relief against Indemnitee which, if successful, might materially interfere with, or adversely affect, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, operation by Indemnitee of its business; and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not Indemnitee may defend any claim to defend the Indemnified Party against which Indemnitee may have a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend defense or otherwise; (y) counterclaim which Indemnitor is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claimassert, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation extent necessary to assume its own defense; it being understood that the Indemnified Party's right to indemnification for assert and maintain such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimor counterclaim.
Appears in 2 contracts
Sources: Indemnification Agreement (Midland States Bancorp, Inc.), Indemnification Agreement (Midland States Bancorp, Inc.)
Third Party Claims. (a) The If any Indemnified Party agrees becomes aware of a Third Party claim (including any action or proceeding commenced or threatened to be commenced by any Third Party) that the Indemnified Party reasonably believes may give rise to the Indemnifying Party’s obligation to indemnify pursuant to this Section 7 (any such claim, a “Third-Party Claim”), the Indemnified Party shall promptly notify the Indemnifying Party notice in writing of such Third-Party Claim (such notice, the assertion “Claim Notice”). The Claim Notice shall be accompanied by copies of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “relevant and material documentation submitted by the Third Party Claim”making such Third-Party Claim and shall describe in reasonable detail (to the extent known by the Indemnified Party) in respect the facts constituting the basis for such Third-Party Claim and the amount of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2claimed Damages; provided, however, provided that any no delay or failure on the part of the Indemnified Party in delivering a Claim Notice shall relieve the Indemnifying Party from any Indemnification Notice will not affect the indemnification provided hereunder, liability hereunder except and only to the extent the Indemnifying Party will shall have been actually and materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)delay or failure.
(b) Within twenty (i20) With respect to a Third Party ClaimBusiness Days after receipt of any Claim Notice, the Indemnifying Party will be entitled may, upon written notice thereof to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result , assume control of monetary damages. Unless the defense of the Third-Party Claim referred to therein at the Indemnifying Party’s sole cost and expense with counsel reasonably satisfactory to the Indemnified Party will have notified Party. Notwithstanding anything to the Indemnifying Party of the existence of the condition set forth in the preceding sentencecontrary contained herein, the Indemnifying Party will have thirty shall not be entitled to assume or control the investigation, defense or prosecution of such Third-Party Claim if (30i) days a material portion of the Damages associated with such Third-Party Claim are not reasonably expected to be indemnifiable hereunder, (ii) at the time of assumption or such lesser number of days set forth in thereafter, the Indemnification Notice as may be required by any Governmental EntityIndemnifying Party fails to conduct the investigation, any court defense or arbitration proceedingsprosecution actively and diligently, or (iii) such Third-Party Claim seeks non-monetary, equitable or injunctive relief against the Indemnified Party or alleges any regulatory inquiry violation of Law by the Indemnified Party; and in each such case ((i), (ii) or investigation(iii)), the Indemnified Party may assume control of its defense.
(c) from receipt The Party not controlling the defense of the Indemnification Notice with respect to a Third such Third-Party Claim (the “Defense Notice PeriodNon-Controlling Party”) to notify may participate therein at its own expense; provided, however, that if the Indemnified Indemnifying Party assumes control of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Third-Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties have materially conflicting interests or different defenses available with respect to such Third-Party Claim which cause the proceedings Indemnified Party to hire its own separate counsel with respect to such proceeding, the reasonable fees and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation expenses of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party shall be considered “Damages” for purposes of one this Agreement. The Party controlling the defense of such Third-Party Claim (the “Controlling Party”) shall keep the Non-Controlling Party advised, in writing, of the status of such Third-Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such Third-Party Claim (including copies of any summons, complaint or more defenses other pleading which may have been served on such Party and any written claim, demand, invoice, billing or counterclaims that are inconsistent other document evidencing or asserting the same) and shall otherwise cooperate with one or more and assist the Controlling Party, as reasonably requested by the Controlling Party, in the defense of those that may be available to the such Third-Party Claim.
(d) The Indemnifying Party in shall not agree to any settlement of, or the entry of any judgment arising from, any Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party shall not be required with respect thereof to any such settlement or judgment if (i) such settlement or judgment (A) involves no admission of wrongdoing by the Indemnified Party, and (B) the sole relief provided is monetary Damages, and (ii) the Indemnifying Party agrees in writing to pay or cause to be paid any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the Indemnified Party assumes and its Affiliates, directors, officers, employees and representatives from further liability. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Third-Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have shall not admit liability with respect to, or agree to any settlement of or the right but entry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Indemnifying Party, which shall not the obligation to assume its own defensebe unreasonably withheld or delayed; it being understood provided that the consent of the Indemnifying Party shall not be required with respect to any such settlement or judgment if the Indemnified Party's right Party agrees in writing to pay or cause to be paid any amounts payable pursuant to such settlement or judgment and that no Indemnified Party is entitled to indemnification for under this Agreement in respect of such Third settlement or judgment. Furthermore, a Party’s consent to any settlement of a Third-Party Claim will shall not be adversely affected by assuming used as evidence of the defense truth of the allegations in any Third-Party Claim or the merits of such Third Third-Party ClaimClaim and the existence of any Third-Party Claim shall not create a presumption of any breach by a Party to this Agreement of any of its representations, warranties or covenants set forth in this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Relief Therapeutics Holding SA), License and Asset Purchase Agreement (Catalyst Pharmaceuticals, Inc.)
Third Party Claims. (ai) The Indemnified Party agrees If any Indemnitee shall desire to give the Indemnifying Party notice assert any claim for indemnification provided under this Article 10 in writing respect of, arising out of the assertion of any or involving a claim or demand made by, or any other Action instituted by, by any Person not (other than a Party to this Agreement Buyer Indemnitee or a Seller Indemnitee) against the Indemnitee (a “Third Party Claim”) ), such Indemnitee shall notify the Indemnitor in respect writing, and in reasonable detail (taking into account the information then available to such Indemnitee), of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2Third Party Claim; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except failure of an Indemnitee to notify the Indemnitor shall relieve the Indemnitor from its obligation to indemnify only to the extent that the Indemnifying Party will have been materially Indemnitor is actually prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will The Indemnitee shall deliver to the Indemnifying PartyIndemnitor, within ten (10) Business Days promptly after the Indemnified Party's Indemnitee’s receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party Indemnitee relating to the Third Party Claim. Any CIE Claim ; provided, however, that the failure to deliver such copies shall be considered relieve the Indemnitor from its obligation to indemnify only to the extent that the Indemnitor is actually prejudiced as a Third Party Claim for purposes result of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)failure.
(bii) (i) With respect to Upon receipt of notification of a Third Party Claim, the Indemnifying Party will Indemnitor shall be entitled to participate in the defense thereof of the Third Party Claim and, if it so electschooses, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, thereof with counsel selected by the Indemnifying Party that is Indemnitor and reasonably acceptable satisfactory to the Indemnified PartyIndemnitee. Once Should the Indemnifying Party has duly assumed Indemnitor so elect to assume the defense of a Third Party Claim, the Indemnified Party will have Indemnitor shall not be liable to the right, but not Indemnitee for legal expenses subsequently incurred by the obligation, to participate Indemnitee in connection with the defense thereof, including unless the opportunity Third Party Claim involves potential conflicts of interest or substantially different defenses for the Indemnitee and the Indemnitor. If the Indemnitor assumes such defense, the Indemnitee shall have the right to participate in any discussions or correspondence with any Governmental Entity, defense thereof and to employ counsel counsel, at its own expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying PartyIndemnitor, it being understood that the Indemnitor shall control such defense. The Indemnified Party will participate in any such defense at its own expense unless (A) Indemnitor shall be liable for the Indemnifying Party fees and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation expenses of both parties counsel employed by the same counsel would be inappropriate due to actual or potential differing interests between them or Indemnitee for any period during which the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes Indemnitor has not assumed the defense of a thereof and as otherwise contemplated by the two immediately preceding sentences. If the Indemnitor chooses to defend any Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B)Claim, all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably parties hereto shall cooperate in the defense or prosecution of a Third Party Claimthereof. Such cooperation will shall include the retention and, and (upon the Indemnifying Party's Indemnitor’s request, ) the provision to the Indemnifying Party Indemnitor of records and information which that are reasonably relevant to such Third Party Claim, and making the use of reasonable best efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderthereunder.
(iiiii) In Whether or not the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming Indemnitor shall have assumed the defense of a Third Party Claim, fails the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnitor’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitor may settle, compromise or discharge such Third Party Claim with the written consent of the Indemnitee, which shall not be unreasonably withheld or delayed, or without such consent if such settlement, compromise or discharge (A) includes an unconditional release of the Indemnitee from all liability in respect of such Third Party Claim, (B) does not subject the Indemnitee to conduct any injunctive relief or other equitable remedy, and (C) does not include a statement or admission of fault or culpability on the part of any Indemnitee.
(iv) Notwithstanding the foregoing, (A) if a Third Party Claim relates to Apportioned Obligations, the Buyers shall be entitled to control the defense of such Third Party Claim in and (B) if a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not relates to Transfer Taxes, BioScrip shall be adversely affected by assuming entitled to control the defense of such Third Party Claim (any Third Party Claim referred to above in this clause (iv), a “Tax Claim”). In the case of any Tax Claim, the party not entitled to control such Tax Claim (the “Non-Controlling Party”) shall be entitled to participate fully (at the Non-Controlling Party’s sole expense) in the conduct of such Tax Claim and the party controlling the defense of such Tax Claim shall not settle such Tax Claim without the consent of the Non-Controlling Party (which consent shall not be unreasonably withheld). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned in the same manner as the Apportioned Obligations or the Transfer Taxes or other Taxes, as the case may be, to which the Tax Claim relates. Notwithstanding any other provision, BioScrip shall be entitled to control in all respects any proceedings relating to Taxes based on or related to income (“Income Taxes”) of the Selling Parties or any of their Affiliates and, except as provided above in this Section 10.03(a)(iv), all other proceedings relating to Taxes of the Selling Parties or any of their Affiliates, and the Buyers shall be entitled to control in all respects any proceedings relating to Income Taxes of the Buyers or any of their respective Affiliates and, except as provided above in this Section 10.03(a)(iv), all other proceedings relating to Taxes of the Buyers or any of their Affiliates.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (BioScrip, Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From obligations and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent liabilities of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice hereunder with respect to a Third Party Claim shall be subject to the following terms and conditions:
(i) The Indemnitee shall give the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense Indemnitor written notice of a Third Party Claim will be reimbursed promptly after receipt by the Indemnifying Party Indemnitee of notice thereof, and the Indemnitor, on behalf of the Indemnitor, may undertake the defense, compromise and settlement thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify the Indemnitor of such claim shall not relieve the Indemnitor of any liability that they may have with respect to such claim except to the extent the Indemnifying Party Indemnitor demonstrates that the defense of such claim is required to indemnify prejudiced by such failure. The assumption of the defense, compromise and hold harmless the Indemnified Party from, against and in respect settlement of Losses incurred or suffered by the Indemnified Party to the extent arising from any such Third Party ClaimClaim by the Indemnitor shall be an acknowledgment of the obligation of the Indemnitor to indemnify the Indemnitee with respect to such claim hereunder. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects Indemnitee desires to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the rightparticipate in, but not the obligationcontrol, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense defense, compromise and settlement, it may do so at its own expense unless (A) the Indemnifying Party sole cost and the Indemnified Party are both named parties to the proceedings and a Governmental Entityexpense. If, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's requesthowever, the provision Indemnitor fails or refuses to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct undertake the defense of such Third Party Claim in a reasonably diligent manner within twenty ten (2010) days after receiving written notice from the Indemnified Party of such claim has been given to the effect that Indemnitor by the Indemnifying Party has so failedIndemnitee, the Indemnified Party will Indemnitee shall have the right but not to undertake the obligation to assume defense, compromise and settlement of such claim with counsel of its own defense; it being understood choosing. In the circumstances described in the immediately preceding sentence, the Indemnitee shall, promptly upon its assumption of the defense of such claim, make an Indemnification Claim as specified in Section 8.3 which shall be deemed an Indemnification Claim that is not a Third Party Claim for the Indemnified Party's purposes of the procedures set forth herein.
(ii) If, in the reasonable opinion of the Indemnitee, any Third Party Claim or the litigation or resolution thereof involves an issue or matter which could have a material adverse effect on the business, operations, assets, properties or prospects of the Indemnitee (including, without limitation, the administration of the tax returns and responsibilities under the tax laws of the Indemnitee), the Indemnitee shall have the right to indemnification for control the defense, compromise and settlement of such Third Party Claim will undertaken by the Indemnitor, and the costs and expenses of the Indemnitee in connection therewith shall be included as part of the indemnification obligations of the Indemnitor hereunder. If the Indemnitee shall elect to exercise such right, the Indemnitor shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(iii) No settlement of a Third Party Claim involving the asserted liability of the Indemnitor under this Article 8 shall be made without the prior written consent by or on behalf of the Indemnitor, which consent shall not be adversely affected by assuming unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $10,000 or less where the Indemnitor has not responded within five (5) business days of notice of a proposed settlement. If the Indemnitor assumes the defense of such a Third Party Claim, (A) no compromise or settlement thereof may be effected by the Indemnitor without the Indemnitee's consent unless (i) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against the Indemnitee, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor, and (iii) the compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnitee of a release, in form and substance satisfactory to the Indemnitee, from all liability in respect of such Third Party Claim, and (B) the Indemnitee shall have no liability with respect to any compromise or settlement thereof effected without its consent.
(iv) In connection with the defense, compromise or settlement of any Third Party Claim, the parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by any party hereto and, as may reasonably be related to any such claim or action, shall provide access to the counsel, accountants and other representatives of each party during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such other party and will furnish to such other party copies of all such documents as may reasonably be requested (certified, if requested).
Appears in 2 contracts
Sources: Merger Agreement (Lochridge Scott F), Merger Agreement (Contour Medical Inc)
Third Party Claims. If a claim by a third party a (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in is made against a Seller Indemnified Party or a Buyer Indemnified Party (an “Indemnified Party”), and if such party intends to seek indemnity with respect of which indemnity may be sought thereto under Article 9 or Section 7.1 in accordance with the 9.3, such Indemnified Party shall promptly furnish written notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent indemnifying party (the Indemnifying Party will have been materially prejudiced as a result “Indemnitor”) of such delayclaims. From The Indemnitor shall have thirty (30) days after receipt of such notice to undertake, conduct, and after control (through counsel of its own choosing and at its own expense) the delivery defense thereof. The Indemnitor may not assume control of a Indemnification Notice the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal liability, (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party, or (iii) the Indemnified Party reasonably believes an adverse determination with respect to a the Third Party Claim would be materially detrimental to the Indemnified Party’s reputation or future business prospects, but in any event, shall remain subject to its indemnification obligations in this Article 9. If the Indemnitor elects to undertake the defense of any Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth cooperate with it in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claimconnection therewith; provided that in such event, Seller will use reasonable best efforts the Indemnitor shall not to create settle any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect without the prior written consent of the Indemnified Party and/or (which consent will not be unreasonably withheld or delayed) unless the relief consists solely of money damages and includes a provision whereby the plaintiff or claimant in the matter releases Buyer Indemnified Party's Affiliates other than Parties or Seller Indemnified Parties, as a result of monetary damagesapplicable, from all liability with respect thereto. Unless The Indemnitor shall permit the Indemnified Party will to participate in such settlement or defense through counsel chosen by such Indemnified Party (however, the fees and expenses of such counsel shall be borne by such Indemnified Party except if (i) the Indemnified Party shall have notified determined in good faith that an actual or potential conflict of interest makes representation by the Indemnifying same counsel or the counsel selected by the Indemnitor inappropriate or (ii) the Indemnitor shall have authorized the Indemnified Party to employ separate legal counsel at the Indemnitor’s expense). So long as the Indemnitor, at Indemnitor’s cost and expense, (i) has undertaken the defense of, and assumed full responsibility for all indemnified liabilities with respect to, such claim, (ii) is reasonably contesting such claim in good faith, by appropriate proceedings, and (iii) has taken such action (including the posting of a bond, deposit, or other security) as may be necessary to prevent any action to foreclose a lien against or attachment of the existence property of the condition set forth in Indemnified Party for payment of such claim, the Indemnified Party shall not pay or settle any such claim. Notwithstanding compliance by the Indemnitor with the preceding sentence, the Indemnifying Indemnified Party will shall have the right to pay or settle any such claim, provided that in such event it shall waive any right to indemnity therefor by the Indemnitor for such claim. If within thirty (30) days (or such lesser number of days set forth in after the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to Indemnified Party’s notice of a Third Party Claim (claim of indemnity hereunder, the “Defense Notice Period”) to Indemnitor does not notify the Indemnified Party of its election that it elects (at Indemnitor’s cost and expense) to assume undertake the defense thereof and assume full responsibility for all indemnified liabilities with respect thereto, or gives such notice and thereafter fails to contest such claim in good faith or to prevent action to foreclose a lien against or attachment of such Third Party Claim. All Losses incurred by the Indemnified Party’s property as contemplated above, the Indemnified Party prior shall have the right to any assumption by contest but shall not settle or compromise the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party claim and, to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred actions taken by the Indemnified Party in connection with settling or compromising such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate claim are reasonable and in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failedgood faith, the Indemnified Party will have the right but shall not the obligation to assume its own defense; it being understood that the Indemnified Party's thereby waive any right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimindemnity therefor pursuant to this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (American Midstream Partners, LP)
Third Party Claims. (a) The Indemnified Party agrees to give Within twenty (20) days following the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not date on which an Indemnitee receives a Party to this Agreement (a “Third Third-Party Claim”) , the Indemnitee shall give deliver a Claim Notice regarding such Third-Party Claim, together with copies of all notices, pleadings, correspondence and other documents asserting or otherwise relating to such Third-Party Claim, to the Indemnitor, in accordance with the provisions of Section 11.01 below. The Indemnitor shall have no liability for any Indemnifiable Loss arising from any Third-Party Claim in respect of which indemnity may be sought under Section 7.1 a Claim Notice is not timely delivered in accordance with the notice procedures set forth preceding sentence, unless the Indemnitor has not been materially prejudiced in Section 7.2any material respect to such failure to deliver the Claim Notice within the twenty (20)-day period.
(b) The Indemnitor shall have the right, at its option, to assume the defense of, at its own expense and by its own counsel, a Third-Party Claim. Assumption of the defense of a Third-Party Claim by the Indemnitor shall not prejudice the right of the Indemnitor to claim at a later date that the Third-Party Claim is not a proper matter for indemnification pursuant to this Article X. If the Indemnitor shall undertake to compromise or defend a Third-Party Claim, it shall promptly notify the Indemnitee of its intention to do so within thirty (30) days after receipt of a Claim Notice, and the Indemnitee agrees to cooperate with the Indemnitor and its counsel in the compromise of, or defense against, the Third-Party Claim as reasonably requested by the Indemnitor; provided, however, that any delay in delivering any Indemnification Notice the Indemnitor shall not settle the Third-Party Claim without the prior written consent of the Indemnitee (which consent will not affect be unreasonably withheld) unless the indemnification provided hereunder, except to relief consists solely of money damages and includes a provision whereby the extent plaintiff or claimant in the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after matter releases the delivery of a Indemnification Notice Indemnitee from all liability with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimthereto. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its Notwithstanding an election to assume the defense of such Third Party Claim. All Losses incurred by action or proceeding, the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend at its expense, with employ separate counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, and to participate in the defense thereofof such action or proceeding, including and the opportunity Indemnitor shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the Indemnitee shall have determined in good faith that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnitor inappropriate or (ii) the Indemnitor shall have authorized the Indemnitee to participate employ separate counsel at the Indemnitor's expense. In any event, the Indemnitee and its counsel shall cooperate with the Indemnitor and its counsel and keep such person informed of all developments relating to the Third-Party Claim, provide copies of all relevant correspondence and documentation relating thereto, and shall not assert any position in any discussions or correspondence proceeding inconsistent with any Governmental Entity, and to employ counsel separate from the counsel employed that asserted by the Indemnifying PartyIndemnitor. The Indemnified Party will participate All reasonable costs and expenses incurred in connection with the Indemnitee's cooperation shall be borne by the Indemnitor. In any such defense event, the Indemnitee shall have the right at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party participate in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third asserted liability. In no event shall the Indemnitee settle the Third-Party Claim in a reasonably diligent manner within twenty without the written consent of the Indemnitor (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim which consent will not be adversely affected by assuming the defense of such Third Party Claimunreasonably withheld).
Appears in 2 contracts
Sources: Merger Agreement (Mainsource Financial Group), Merger Agreement (Mainsource Financial Group)
Third Party Claims. (a) The Indemnified Party agrees If any person entitled to give the Indemnifying Party ------------------ indemnification under this Agreement (an "Indemnitee") receives notice in writing of the assertion of any claim or demand made by, of the commencement of any action or proceeding by any other Action instituted by, any Person person that is not a Party party to this Agreement or a subsidiary of any such party (a “Third "Third-Party Claim”") in respect against such Indemnitee, the Indemnitee shall promptly provide written notice thereof (including a description of the Third-Party Claim and an estimate of any Indemnifiable Losses (which indemnity may estimate shall not be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except conclusive as to the extent the Indemnifying Party will have been materially prejudiced as a result final amount of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver Indemnifiable Losses) to the party required to provide indemnification under this Agreement (the "Indemnifying Party, ") within ten (10) Business Days after the Indemnified PartyIndemnitee's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third notice of such Third-Party Claim. Any CIE Claim delay by the Indemnitee in providing such written notice shall be considered a Third not relieve the Indemnifying Party Claim of any liability for purposes indemnification hereunder except to the extent that the rights of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in Indemnifying Party are materially prejudiced by such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)delay.
(b) (i) With respect to a Third Party Claim, the The Indemnifying Party will be entitled shall have the right to participate in or, by giving written notice to the defense thereof and, if it so electsIndemnitee, to assume the defense thereof, unless such Third of any Third- Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified at such Indemnifying Party's Affiliates other than as a result expense and by such Indemnifying Party's own counsel (which shall be reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense. The Indemnifying Party shall not be liable for any legal expenses incurred by the Indemnitee after the Indemnitee has received notice of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Party's intent to assume the defense of such Third a Third-Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by ; provided, however, that if the Indemnifying Party of fails to take steps reasonably necessary to diligently pursue the defense of a Third such Third-Party Claim will be reimbursed by within ten (10) Business Days of receipt of notice from the Indemnitee that such steps are not being taken, the Indemnitee may assume its own defense and the Indemnifying Party shall be liable for the reasonable costs thereof.
(c) The Indemnifying Party may settle any Third-Party Claim which it has elected to defend so long as the extent written consent of the Indemnitee to such settlement is first obtained (which consent shall not be unreasonably withheld). The Indemnitee shall not settle any Third-Party Claim without the written consent of the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but (which consent shall not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (Bunreasonably withheld), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(iid) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against that a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Third-Party Claim involves a proceeding as to which both Citizens and ▇▇▇ may be Indemnifying Parties, the parties hereto agree to cooperate in good faith in a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the joint defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Third-Party Claim.
Appears in 2 contracts
Sources: Indemnification Agreement (Electric Lightwave Inc), Indemnification Agreement (Electric Lightwave Inc)
Third Party Claims. (a) The Indemnified If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a New NGC Entity or a HII Entity of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action with respect to which an Indemnifying Party agrees may be obligated to provide indemnification to such Indemnitee pursuant to this Agreement or any Ancillary Agreement (collectively, a “Third-Party Claim”), such Indemnitee shall give such Indemnifying Party written notice thereof as soon as promptly practicable, but no later than 20 days after becoming aware of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail and contain written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give notice as provided in this Section 5.5(a) shall not relieve the related Indemnifying Party of its obligations under this Article V, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice.
(b) With respect to any Third-Party Claim that is or may be a Shared Liability:
(i) If the Indemnifying Party receiving any notice in writing pursuant to Section 5.5(a) or the Indemnitee believes that the Third-Party Claim is or may be a Shared Liability, such Indemnifying Party or Indemnitee may make a Determination Request within 30 days after the notice given by the Indemnitee to the Indemnifying Party pursuant to Section 5.5(a). Upon the making of a Determination Request, the assertion applicable Indemnitee shall assume the defense of any claim such Third-Party Claim until a determination as to whether such Third-Party Claim is a Shared Liability. In the event of such assumption of defense, such Indemnitee shall be entitled to reimbursement of all the costs and expenses of such defense once a final determination or demand acknowledgement is made by, or any other Action instituted by, any Person not a Party that such Indemnitee is entitled to this Agreement (a “Third indemnification with respect to such Third-Party Claim”) ; provided, that if such Third-Party Claim is determined to be a Shared Liability, such costs and expenses shall be shared as provided in respect of which indemnity may be sought under Section 7.1 5.5(b)(ii). If it is determined by New NGC and HII or by the Allocation Committee that the Third-Party Claim is a Shared Liability, the Managing Party (as determined in accordance with Section 6.1(a)) shall assume the defense of such Third-Party Claim as soon as reasonably practicable following such determination.
(ii) A party’s costs and expenses of assuming the defense of (subject to Section 5.5(b)(i)), and/or seeking to settle or compromise (subject to Section 5.5(b)(iv)), any Third-Party Claim that is a Shared Liability shall be included in the calculation of the amount of the applicable Shared Liability in determining the obligations of the parties with respect thereto pursuant to Section 6.4.
(iii) The Managing Party shall consult with the Non-Managing Party prior to taking any action with respect to any Third-Party Claim that is a Shared Liability if the Managing Party’s action could reasonably be expected to have a significant adverse impact (financial or non-financial) on the Non-Managing Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Non-Managing Party (or its Subsidiaries or Affiliates), and the Managing Party shall not take such action without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(iv) The Managing Party shall promptly give notice procedures set forth to the Non-Managing Party regarding the substance of any settlement related discussions with respect to any Third-Party Claim that is a Shared Liability if (A) the Non-Managing Party is required to share in any significant aspect of the costs and expenses, proceeds or obligations resulting from such settlement or (B) the settlement can reasonably be expected to have a significant impact (financial or nonfinancial) on the Non-Managing Party. In such instances, the Managing Party shall not settle such Third-Party Claim without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(c) With respect to any Third-Party Claim that is not a Shared Liability:
(i) Unless the parties otherwise agree, within 30 days after the receipt of notice from an Indemnitee in accordance with Section 7.25.5(a), an Indemnifying Party shall defend (and, unless the Indemnifying Party has specified any reservations or exceptions, may seek to settle or compromise), at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, any Third-Party Claim that is not a Shared Liability. The applicable Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee (A) for any period during which the Indemnifying Party has not assumed the defense of such Third-Party Claim (other than during any period in which the Indemnitee shall have failed to give notice of the Third-Party Claim in accordance with Section 5.5(a)) or (B) to the extent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnitee acting in good faith.
(ii) No Indemnifying Party shall consent to entry of any judgment or enter into any settlement of any Third-Party Claim that is not a Shared Liability without the consent of the applicable Indemnitee; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except such Indemnitee shall be required to the extent consent to such entry of judgment or to such settlement that the Indemnifying Party will have been materially prejudiced as a result may recommend if the judgment or settlement (A) contains no finding or admission of such delay. From and after the delivery any violation of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes Law or any violation of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement rights of any CIE Claim; provided that in such eventPerson, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(bB) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of involves only monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once relief which the Indemnifying Party has duly assumed agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the defense Indemnitee, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnitee (or any of its Subsidiaries or Affiliates), and (C) includes a Third Party Claimfull and unconditional release of the Indemnitee. Notwithstanding the foregoing, in no event shall an Indemnitee be required to consent to any entry of judgment or settlement if the Indemnified Party will have the righteffect thereof is to permit any injunction, but declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(d) Whether or not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Third-Party Claim, no Indemnitee shall admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by without the Indemnifying Party. Each Party will reasonably cooperate in the defense ’s prior written consent, which consent shall not be unreasonably withheld or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderdelayed.
(iie) In Notwithstanding anything to the event contrary in this Section 5.5 or in Article VI, the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result additional provisions of the Indemnified Party's election Litigation Management Agreement shall govern with respect to defend all Third-Party Claims (including Shared Actions) specifically set forth therein or covered by the Third terms thereof, and the Litigation Management Agreement shall control over any inconsistent provisions of this Section 5.5 and Article VI as to such Third-Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimClaims.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.), Separation and Distribution Agreement (Northrop Grumman Corp /De/)
Third Party Claims. (aIf an Indemnitee is entitled to indemnification pursuant to Section 4.1(a) The Indemnified Party agrees to give the Indemnifying Party notice in writing because of the assertion of a claim asserted by any claim or demand made by, or any other Action instituted by, any Person claimant who is not a Party to an Indemnitee under this Agreement (a “"Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with Person"), the Indemnitee shall give the Indemnitor reasonably prompt notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except thereof after such assertion is actually known to the extent Indemnitee. The Indemnitor shall have the Indemnifying Party will have been materially prejudiced as right, upon written notice to the Indemnitee, and using counsel reasonably satisfactory to the Indemnitee, to investigate, secure, contest or settle the Claim alleged by such Third Person (a result of such delay. From and after "Third Person Claim") with its own counsel at its own expense, provided that the delivery of a Indemnification Notice Indemnitor has unconditionally acknowledged to the Indemnitee in writing its obligation to indemnify the persons to be indemnified pursuant to Section 4.1(a) with respect to such Third Person Claim. The Indemnitee may thereafter participate in (but not control) the defense of any such Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a Third Party Claimconflict of interest, in which case such representation shall be at the expense of the Indemnitor. Unless and until the Indemnitor so acknowledges its obligation to indemnify, the Indemnified Party will deliver to Indemnitee shall have the Indemnifying Partyright, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so electsat its option, to assume and control the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence Claim and to look to the Indemnitor for the full amount of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number costs of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt defense. The failure of the Indemnification Notice Indemnitor to respond in writing to the aforesaid notice of the Indemnitee with respect to a such Third Party Person Claim (within 30 calendar days after receipt thereof shall be deemed an election not to defend such Third Person Claim. If the “Defense Notice Period”) Indemnitor does not so acknowledge its obligation to notify the Indemnified Party of its election to indemnify and assume the defense of any such Third Party Person Claim. All Losses incurred by : (i) the Indemnified Party prior Indemnitee may defend against such claim, in such manner as it may deem reasonably appropriate, including, without limitation, settling such claim, after giving notice of the same to any assumption by the Indemnifying Party of Indemnitor, on such terms as the Indemnitee may deem reasonably appropriate; and (ii) the Indemnitor may participate in (but not control) the defense of a Third Party Claim will be reimbursed by the Indemnifying Party such action, with its own counsel at its own expense. Marketer and Producer shall make available to the extent the Indemnifying Party is required each other all relevant information in their possession relating to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from any such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate Person Claim and shall cooperate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 2 contracts
Sources: Distillers Crude Corn Oil Marketing Agreement (Highwater Ethanol LLC), Distillers Crude Corn Oil Marketing Agreement (Highwater Ethanol LLC)
Third Party Claims. (a) The Indemnified If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) that is not a New NGC Entity or a HII Entity of any claim (including environmental claims and demands or requests for investigation or remediation of contamination) or of the commencement by any such Person of any Action with respect to which an Indemnifying Party agrees may be obligated to provide indemnification to such Indemnitee pursuant to this Agreement or any Ancillary Agreement (collectively, a “Third-Party Claim”), such Indemnitee shall give such Indemnifying Party written notice thereof as soon as promptly practicable, but no later than 20 days after becoming aware of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail and contain written correspondence received from the third party that relates to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnitee to give notice as provided in this Section 5.5(a) shall not relieve the related Indemnifying Party of its obligations under this Article V, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice.
(b) With respect to any Third-Party Claim that is or may be a Shared Liability:
(i) If the Indemnifying Party receiving any notice in writing pursuant to Section 5.5(a) or the Indemnitee believes that the Third-Party Claim is or may be a Shared Liability, such Indemnifying Party or Indemnitee may make a Determination Request within 30 days after the notice given by the Indemnitee to the Indemnifying Party pursuant to Section 5.5(a). Upon the making of a Determination Request, the assertion applicable Indemnitee shall assume the defense of any claim such Third-Party Claim until a determination as to whether such Third-Party Claim is a Shared Liability. In the event of such assumption of defense, such Indemnitee shall be entitled to reimbursement of all the costs and expenses of such defense once a final determination or demand acknowledgement is made by, or any other Action instituted by, any Person not a Party that such Indemnitee is entitled to this Agreement (a “Third indemnification with respect to such Third-Party Claim”) ; provided, that if such Third-Party Claim is determined to be a Shared Liability, such costs and expenses shall be shared as provided in respect of which indemnity may be sought under Section 7.1 5.5(b)(ii). If it is determined by New NGC and HII or by the Allocation Committee that the Third-Party Claim is a Shared Liability, the Managing Party (as determined in accordance with Section 6.1(a)) shall assume the defense of such Third-Party Claim as soon as reasonably practicable following such determination.
(ii) A party’s costs and expenses of assuming the defense of (subject to Section 5.5(b)(i)), and/or seeking to settle or compromise (subject to Section 5.5(b)(iv)), any Third-Party Claim that is a Shared Liability shall be included in the calculation of the amount of the applicable Shared Liability in determining the obligations of the parties with respect thereto pursuant to Section 6.4.
(iii) The Managing Party shall consult with the Non-Managing Party prior to taking any action with respect to any Third-Party Claim that is a Shared Liability if the Managing Party’s action could reasonably be expected to have a significant adverse impact (financial or non-financial) on the Non-Managing Party, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Non-Managing Party (or its Subsidiaries or Affiliates), and the Managing Party shall not take such action without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(iv) The Managing Party shall promptly give notice procedures set forth to the Non-Managing Party regarding the substance of any settlement related discussions with respect to any Third-Party Claim that is a Shared Liability if (A) the Non-Managing Party is required to share in any significant aspect of the costs and expenses, proceeds or obligations resulting from such settlement or (B) the settlement can reasonably be expected to have a significant impact (financial or nonfinancial) on the Non-Managing Party. In such instances, the Managing Party shall not settle such Third-Party Claim without the prior written consent of the Non-Managing Party, which consent shall not be unreasonably withheld or delayed.
(c) With respect to any Third-Party Claim that is not a Shared Liability:
(i) Unless the parties otherwise agree, within 30 days after the receipt of notice from an Indemnitee in accordance with Section 7.25.5(a), an Indemnifying Party shall defend (and, unless the Indemnifying Party has specified any reservations or exceptions, seek to settle or compromise), at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, any Third-Party Claim that is not a Shared Liability. The applicable Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee. Notwithstanding the foregoing, the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnitee (A) for any period during which the Indemnifying Party has not assumed the defense of such Third-Party Claim (other than during any period in which the Indemnitee shall have failed to give notice of the Third-Party Claim in accordance with Section 5.5(a)) or (B) to the extent that such engagement of counsel is as a result of a conflict of interest, as reasonably determined by the Indemnitee acting in good faith.
(ii) No Indemnifying Party shall consent to entry of any judgment or enter into any settlement of any Third-Party Claim that is not a Shared Liability without the consent of the applicable Indemnitee; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except such Indemnitee shall be required to the extent consent to such entry of judgment or to such settlement that the Indemnifying Party will have been materially prejudiced as a result may recommend if the judgment or settlement (A) contains no finding or admission of such delay. From and after the delivery any violation of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes Law or any violation of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement rights of any CIE Claim; provided that in such eventPerson, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(bB) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of involves only monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once relief which the Indemnifying Party has duly assumed agreed to pay and could not reasonably be expected to have a significant adverse impact (financial or non-financial) on the defense Indemnitee, including a significant adverse impact on the rights, obligations, operations, standing or reputation of the Indemnitee (or any of its Subsidiaries or Affiliates), and (C) includes a Third Party Claimfull and unconditional release of the Indemnitee. Notwithstanding the foregoing, in no event shall an Indemnitee be required to consent to any entry of judgment or settlement if the Indemnified Party will have the righteffect thereof is to permit any injunction, but declaratory judgment, other order or other nonmonetary relief to be entered, directly or indirectly, against any Indemnitee.
(d) Whether or not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Third-Party Claim, no Indemnitee shall admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by without the Indemnifying Party. Each Party will reasonably cooperate in the defense ’s prior written consent, which consent shall not be unreasonably withheld or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderdelayed.
(iie) In Notwithstanding anything to the event contrary in this Section 5.5 or in Article VI, the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result additional provisions of the Indemnified Party's election Litigation Management Agreement shall govern with respect to defend all Third-Party Claims (including Shared Actions and Assigned Actions, as defined in the Third Litigation Management Agreement) specifically set forth therein or covered by the terms thereof, and the Litigation Management Agreement shall control over any inconsistent provisions of this Section 5.5 and Article VI as to such Third-Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimClaims.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.), Separation and Distribution Agreement (Huntington Ingalls Industries, Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party If any Indemnitee receives notice in writing of the assertion of any claim or demand made byof the commencement of any action or proceeding by any entity that is not either a FairPoint Indemnitee or a Supplier Indemnitee (each, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnitor is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnitor prompt written notice thereof, but in respect any event not later than ten calendar days after receipt of which indemnity may be sought under Section 7.1 in accordance with notice of such Third Party Claim, provided, however, that the notice procedures failure of an Indemnitee to notify the Indemnitor within the time period set forth herein shall only relieve the Indemnitor from its obligation to indemnify to the extent that the Indemnitor is materially prejudiced by such failure or delay (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnitor shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof at such Indemnitor’s expense with counsel reasonably satisfactory to the Indemnitee, provided that the Indemnitor shall not have the right to assume the defense of any Third Party Claim in Section 7.2the event such Third Party Claim is primarily for injunctive relief or criminal penalty of the Indemnitee, and in any such case, the reasonable fees and expenses of counsel to the Indemnitee in connection with such Third Party Claim shall be considered “Losses” for purposes of this Agreement. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to Indemnitee shall pay the extent the Indemnifying Party will have been materially prejudiced as a result fees and disbursements of such delay. From and after separate counsel unless (1) the delivery employment of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received such separate counsel has been specifically authorized in writing by the Indemnified Party relating to Indemnitor; (2) the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Indemnitor has failed to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party Claim within 20 calendar days after receipt of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, notice thereof with counsel selected by the Indemnifying Party that is reasonably acceptable satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions such Indemnitee; or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A3) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnitor and a Governmental Entitysuch Indemnitee and, arbitrator or arbitration panelin the reasonable judgment of counsel to such Indemnitee, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of there exists one or more good faith defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party Indemnitee that are in conflict with those available to the Indemnitor or that the Indemnitor and Indemnitee have actual material conflicting interests with respect thereof to such claim, demand, action or (B) cause of action. Notwithstanding the Indemnified Party assumes foregoing, the defense Indemnitor shall not be liable for the fees and disbursements of a more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of an Indemnitee, which shall not be unreasonably withheld or delayed, the Indemnitor will not enter into any settlement of or consent to the entry of judgment in connection with any Third Party Claim after that (i) would lead to liability or create any financial or other obligation on the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedpart of the Indemnitee, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In does not contain, as an unconditional term thereof, the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result release of the Indemnified Party's election to defend the Third Party Claim as provided Indemnitee from all liability in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense respect of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for or such Third Party Claim will is not be adversely affected dismissed against the Indemnitee with prejudice and without the imposition of any financial or other obligation on the Indemnitee or (iii) admits the liability or fault of the Indemnitee (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to resolve a Third Party Claim and the Indemnitor notifies the Indemnitee in writing of the Indemnitor’s willingness to accept the settlement offer and pay the amount called for by assuming such offer without reservation of any rights or defenses against the defense Indemnitee and if the Indemnitee fails to consent to such settlement offer within ten calendar days after its receipt of such notice, Indemnitee may continue to contest such claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with respect to such Third Party ClaimClaim that the Indemnitor has an obligation to pay hereunder shall be limited to the lesser of (x) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or (y) the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense shall keep the other party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith all reasonable recommendations made by the other party with respect thereto.
Appears in 2 contracts
Sources: Transition Services Agreement (Fairpoint Communications Inc), Transition Services Agreement
Third Party Claims. In the event that a party (athe "INDEMNITEE") The Indemnified Party agrees desires to give make a claim against another party (the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”"INDEMNITOR") in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii11.2 or Section 11.3 in connection with any action, suit, proceeding or demand at any time instituted against or made upon the Indemnitee by any third party for which the Indemnitee may seek indemnification hereunder (a "THIRD PARTY CLAIM").
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate Indemnitee shall promptly notify, in writing, the defense thereof and, if it so elects, to assume the defense thereof, unless Indemnitor of such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence Indemnitee's claim of the condition set forth in the preceding sentence, the Indemnifying Party will indemnification with respect thereto. The Indemnitor shall have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from after receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) such notice to notify the Indemnified Party of its election Indemnitee if he/she or it has elected to assume the defense of such Third Party Claim. All Losses incurred by If the Indemnified Party prior Indemnitor elects to any assumption by the Indemnifying Party of assume the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right Indemnitor shall be entitled at his/her or its own expense to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed conduct and control the defense and settlement of such Third Party Claim through counsel of his or its own choosing; PROVIDED, HOWEVER, that the Indemnitee may participate in the defense of such Third Party Claim with his/her or its own counsel at his/her or its own expense and the Indemnitor may not settle any Third Party Claim without the Indemnitee's consent, which shall not be unreasonably withheld. If the Indemnitor fails to notify the Indemnitee within thirty (30) days after receipt of the Indemnitee's written notice of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would Indemnitee shall be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct assume the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from at the Indemnified Party to expense of the effect Indemnitor; PROVIDED, HOWEVER, that the Indemnifying Party has so failed, the Indemnified Party will have the right but Indemnitee may not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such settle any Third Party Claim will without the Indemnitor's consent, which shall not be adversely affected by assuming the defense of such Third Party Claimunreasonably withheld.
Appears in 1 contract
Third Party Claims. (a) The Indemnified If a Party agrees to give (the Indemnifying Indemnitee) believes that the other Party notice (the Indemnitor) is responsible for defending or indemnifying the Indemnitee under this Section 7 above, the Indemnitee will promptly but in no event more than five (5) Business Days from the date it becomes aware of the good-faith Third Party claim notify the Indemnitor in writing of the assertion third-party claim, describing the claim in reasonable detail, provided that failure to give notice as provided in this Section 7.3(a) will not relieve the Indemnitor of any claim or demand made by, or any other Action instituted by, any Person not a Party to its indemnification obligation under this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been such Indemnitor is actually and materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)failure.
(b) (i) With respect to a Third Party Claim, Neither the Indemnifying Party Indemnitee nor the Indemnitor will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result make any admission of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and liability in respect of Losses incurred or suffered by any third-party claim without the Indemnified Party prior written consent of the other Party, and the Indemnitee will use reasonable efforts to the extent mitigate losses arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it third-party claim.
(c) The Indemnitor will have the exclusive right to so defend at its expenseconduct and control defense, with negotiations and settlement of claims for which the Indemnitor is responsible under this Section 7 and will assume, conduct and control the defence and settlement of any suit or action against the Indemnitee using counsel selected by the Indemnifying Party Indemnitor. The Indemnitee will, at the Indemnitor’s expense, cooperate and cause its Affiliates and agents to cooperate as reasonably requested by Indemnitor in the defence and settlement of the third-party claim.
(d) The Indemnitor will not be responsible for any costs, expenses or settlement agreement incurred or made without the prior written consent of Indemnitor, which will not be unreasonably withheld or delayed. The Indemnitor will not have authority to bind the Indemnitee except to a settlement in which the sole relief to be provided is for monetary damages that is reasonably acceptable to are paid in full by the Indemnified Party. Once Indemnitor and any other commitments by the Indemnifying Party has duly assumed Indemnitor that do not adversely impact the defense Indemnitee.
(e) If Biotronik becomes aware of a Third Party Claimgood faith third-party product liability claim relating to a Bio Product, the Indemnified Party Biotronik will have the right, but not the obligationacting reasonably and in good faith, to participate require Acutus to suspend further sales of such Bio Product, provided that Biotronik uses commercially reasonable efforts, in addition to Biotronik’s indemnification obligations hereunder, to replace or modify the defense thereofaffected Bio Product so that it becomes conforming to all applicable requirements hereunder in all respects while giving equivalent performance and without undue delay or interruption of sales. Notwithstanding anything to the contrary, including if Biotronik requires suspension of Bio Product sales under this Section 7.3(e) due to a breach by Biotronik of its obligations under this Agreement or the opportunity to participate in any discussions or correspondence with any Governmental EntityQuality Management Agreement, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim if as a result of the Indemnified Party's election such breach Bio Product that have been previously delivered to defend the Third Party Claim as provided Acutus and that remain in Acutus’ inventory are not suitable to be sold, then (i) in accordance with this Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party and to the effect that the Indemnifying Party extent Biotronik has so failednot otherwise required such return, the Indemnified Party will Acutus shall have the right but to return to Biotronik, at Biotronik’s cost and expense, (aa) all sterile Bio Products immediately and (bb) all Bio Products not supplied by Biotronik in sterile form, within three (3) months after receipt of the obligation notification of suspension by Acutus. If Biotronik becomes aware of a good faith third-party product liability claim relating to assume its own defense; it being understood that an OEM Product, Biotronik will notify Acutus Immediately in writing, reasonably describing the Indemnified Party's right claim in such notice. Acutus agrees to indemnification suspend further sales to the extent Biotronik is obligated to suspend further sales under Biotronik’s agreement with the OEM manufacturer, and Biotronik agrees to remedy the issue for such Third Party Claim will not be adversely affected by assuming Acutus in no less favorable of a manner as the defense of such Third Party ClaimOEM manufacturer agreed to remedy the issue for Biotronik.
Appears in 1 contract
Third Party Claims. (ai) The Within 10 Business Days after the receipt by any Indemnified Party agrees of a notice of any claim by any third party, or any Proceeding by any third party, that may be subject to indemnification under this Article 9 (a “Third-Party Claim”), including any claim or Proceeding relating to any Excluded Liability, any Excluded Asset, or any Assumed Liability, the Notifying Party shall give written notice of such Third-Party Claim to the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with Section 9.3(a) above (the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying “Third-Party will have been materially prejudiced as a result of such delayClaim Notice”). From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimThereafter, the Indemnified Notifying Party will shall deliver to the Indemnifying Party, within ten (10) Business Days promptly after the any Indemnified Party's ’s receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party Party, or filed or published, relating to the Third Third-Party Claim. Any CIE Claim shall be considered a Third Notwithstanding anything to the contrary herein, the failure to provide any Third-Party Claim Notice or such other notices or documents described herein will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party or Notifying Party for purposes indemnification of Losses hereunder, except to the procedures set forth in this Section 7.3, it being the intent of the parties extent that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure action is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)actually prejudiced thereby.
(bii) (i) With respect to If a Third Third-Party ClaimClaim is made against an Indemnified Party, the Indemnifying Party will shall be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentenceIn addition, the Indemnifying Party will have thirty may elect (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect written notice to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party within 45 Business Days after the Indemnifying Party receives notice of its election to assume the such claim, or at any time thereafter if a diligent and good faith defense of such Third Party Claim. All Losses incurred claim is not being, or ceases to be, conducted by the Indemnified Party prior and such conduct is not remedied within 10 Business Days after notice in writing to any assumption the Indemnified Party by the Indemnifying Party of Party) to assume and control the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, thereof with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Party so long as the Indemnifying Party expressly agrees in writing to indemnify the Indemnified Party for any Losses resulting from such Third-Party Claim (subject to the limitations set forth in Section 9.2); provided that the Indemnifying Party shall not be entitled to direct such defense if (A) the Indemnifying Party fails to conduct such defense in an active and diligence manner, (B) the Third-Party Claim is in respect of any matter involving potential criminal liability or seeks as a remedy the imposition of an equitable remedy that, if granted, would be binding upon the Indemnified Party or any of its Affiliates, (C) the Indemnified Party reasonably believes an adverse determination with respect to the Third-Party Claim would be materially detrimental or adverse to the Indemnified Party’s reputation or future business prospects, (D) the Indemnified Party has duly assumed been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (E) the Indemnified Party has determined in good faith that the amount of potential Losses arising therefrom exceeds the Indemnifying Party’s remaining indemnification obligations in respect thereof, or (F) such Third-Party Claim involves and Top Customer or Top Supplier. Should the Indemnifying Party so elect to assume the defense of a Third Third-Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party will for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof for so long as it continues to direct such defense. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right, but not the obligation, right to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, thereof and to employ employ, at its own expense, counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) , it being understood that the Indemnifying Party shall control such defense and shall be empowered to make any settlement with respect to such Third-Party Claim, subject to the terms of this Section 9.3(c). If and solely to the extent that the underlying Third-Party Claim is determined to be indemnifiable hereunder, the Indemnifying Party shall be liable to indemnify the Indemnified Party are both named parties to the proceedings for any reasonable fees and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation expenses of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred employed by the Indemnified Party in connection with defense of such participation will be borne by Third-Party Claim for any period during which the Indemnifying Party. Party has not assumed the defense thereof.
(iii) Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim if the Indemnified Party is the only Person with actual or potential liability with respect to the Third-Party Claim and the Indemnified Party irrevocably waives any rights it may have to indemnification under this Article 9 with respect to such Third-Party Claim.
(iv) Each Party will reasonably of the Parties shall cooperate reasonably, and shall cause their Affiliates to cooperate reasonably, in the defense or prosecution (or settlement) of a Third any Third-Party ClaimClaim against any of them. Such cooperation will shall include using commercially reasonable efforts in (A) the retention and, and (upon the reasonable request of an Indemnifying Party's request, Party or other Party involved in such claim) the provision to the Indemnifying Party of documents, records and information which that are reasonably relevant to such Third Third-Party Claim, Claim upon reasonable request therefor (subject to the receiving Party’s agreement to appropriate provisions for maintaining confidentiality and privilege in a manner consistent with Section 6.3 and Section 6.12) and (B) making employees available during regular business hours and on a mutually convenient basis reasonable advance notice to provide additional information and explanation of any material provided hereunder or otherwise relating to the Third-Party Claim.
(v) Whether or not the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnifying Party’s prior written consent (which consent will not be unreasonably withheld, conditioned or delayed) unless the Indemnified Party irrevocably waives its right to indemnification under this Article 9 with respect to such Third-Party Claim. If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnifying Party may compromise or settle the same; provided that the Indemnifying Party shall give the Indemnified Party notice reasonably in advance of any proposed compromise or settlement and in no event shall the Indemnifying Party compromise or settle any Third-Party Claim without the prior written consent of the Indemnified Party, unless such compromise or settlement (i) provides for no relief other than the payment of monetary damages borne solely by the Indemnifying Party, (ii) does not include any admission of wrongdoing or violation of Law on the part of the Indemnified Party or its Subsidiaries, (iii) poses no reasonable danger of establishing a precedent that will be materially adverse to the Indemnified Party’s interest (including by materially adversely effecting any other existing Third-Party Claim) and (iv) includes a customary release from Liability of the Indemnified Party, its Subsidiaries, Affiliate and their respective representatives in respect thereof given by the third party who brought such Third-Party Claim. For the avoidance of doubt, the Indemnifying Party shall have no obligation or right to obtain any settlement, compromise, discharge or release with respect to any portion of a Third-Party Claim that is not indemnifiable by the Indemnifying Party hereunder.
(iivi) In the event case of any Third-Party Claims where the Indemnifying Party reasonably believes that it would be appropriate to settle such claim using equitable remedies (x) elects not to defend i.e., remedies involving the future activity and conduct of the Business), the Indemnifying Party and the Indemnified Party against shall work together in good faith to agree to a Third mutually acceptable settlement; provided that no Party Claim, whether by not giving the Indemnified Party timely notice of its desire shall be under any obligation to so defend or otherwise; agree to any such settlement.
(yvii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party Notwithstanding anything to the effect that the Indemnifying Party has so failedcontrary herein, the Indemnified Party will have the right but provisions of this Section 9.3 shall not the obligation apply to assume its own defense; it being understood that the Indemnified Party's right any claim with respect to indemnification for such Third Party Claim will not Taxes, which shall be adversely affected governed solely by assuming the defense of such Third Party ClaimSection 6.9(a).
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees If a Parent Indemnitee becomes aware of a third-party claim that such Parent Indemnitee believes, in good faith, may result in a demand by it for indemnification pursuant to give this Article VIII, such Parent Indemnitee shall promptly notify the Indemnifying Party notice Holder Representatives in writing of the assertion of any such claim, setting forth such claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the reasonable detail. The Indemnifying Party will shall have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) 10 days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) after receipt of such notice to notify the Indemnified Indemnitee that the Indemnifying Party does not dispute the Indemnifying Party’s obligation to indemnify with respect to such third-party claim and desires to undertake the conduct and control, through counsel of its election own choosing and at its own expense, the settlement or defense thereof, and the Indemnitee shall cooperate with it in connection therewith; provided, that the Indemnifying Party shall be entitled to assume the defense of such Third Party Claim. All action only to the extent (i) such claim would not reasonably be expected to give rise to Losses incurred by that are more than the Indemnified Party prior amount of the funds then remaining in the Indemnity Escrow Account (when taking into account any other pending claims on the funds in the Indemnity Escrow Account) or (ii) the claim does not seek an injunction or equitable relief against the Indemnitee; and provided further, that, if it elects to any assumption by assume control of such claim, the Indemnifying Party shall be entitled to continue to maintain control of that claim so long as it conducts the defense of a Third Party Claim will the claim actively and diligently. The Indemnitee is hereby authorized (but not obligated), prior to and during the Notice Period, to use commercially reasonable efforts to file any motion, answer or other pleading and to take any other action which the Indemnitee shall, based on the opinion of its counsel (which may be reimbursed by in-house counsel), deem necessary or advisable to protect the Indemnitee’s interests and shall provide an advance notice to the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claimthereof. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed assumes control of the defense of a Third Party Claimsuch claim, the Indemnified Party will have the right, but not the obligation, to Indemnitee may participate in the such settlement or defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, through counsel chosen by such Indemnitee and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense paid at its own expense unless (A) expense; provided that, if in the reasonable opinion of counsel for such Indemnitee, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental EntityIndemnitee, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) shall be responsible for the Indemnified Party assumes the defense reasonable fees and expenses of a Third Party Claim after the Indemnifying Party has failed one counsel to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party Indemnitee in connection with such participation will be borne by defense. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim without the consent of the Indemnifying Party. Each If the Indemnifying Party will reasonably cooperate in does not notify the Indemnitee within 10 days after receipt of the Indemnitee’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof (or prosecution the Indemnifying Party is otherwise unable to assume control of a Third Party Claim. Such cooperation will include the retention anddefense pursuant to the terms of this Section 8.5), upon the Indemnitee shall have the right to undertake, at the Indemnifying Party's request’s cost, risk and expense, the provision defense, compromise or settlement of the claim, but shall not thereby waive any right to the indemnity therefor pursuant to this Agreement. The Indemnifying Party shall not, except with the consent of records and information which are reasonably relevant the Indemnitee, enter into any settlement that (a) does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnitees of an unconditional release from all Liability with respect to such Third Party Claim, and making employees available on a mutually convenient basis claim or consent to provide additional information and explanation entry of any material provided hereunderjudgment and (b) involves non-monetary relief or remedy, including any restrictions on the Indemnitee’s ability to operate or compete.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Third Party Claims. If any investigation, action or other proceeding (aeach a "Proceeding") The Indemnified Party agrees is initiated against any Indemnitee by any third party and such Indemnitee intends to seek indemnification from an Indemnitor under this Article on account of its involvement in such Proceeding, then such Indemnitee will give prompt notice to the Indemnifying Party notice in writing applicable Indemnitor of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2such Proceeding; provided, howeverthat the failure to so notify such Indemnitor will not relieve such Indemnitor of its obligations under this Article, but will reduce such obligations by the amount of Losses or increased costs and expenses attributable to such failure to give notice. Upon receipt of such notice, such Indemnitor will diligently defend against such Proceeding on behalf of such Indemnitee at its own expense using counsel reasonably acceptable to such Indemnitee; provided, that if such Indemnitor fails to diligently defend or refuses to conduct such defense, or such Indemnitee has been advised by counsel that it may have defenses available to it which are different from or in addition to those available to such Indemnitor, or that its interests in such Proceeding are adverse to such Indemnitor's interests, then such Indemnitee may defend against such Proceeding at such Indemnitor's expense. Such Indemnitor or Indemnitee, as applicable, may participate in any delay in delivering any Indemnification Notice Proceeding being defended against by the other at its own expense, and will not affect settle any Proceeding without the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes prior consent of the procedures set forth other, which consent will not be unreasonably withheld; provided, that the consent of an Indemnitor is not required if such Indemnitor failed or refused to defend the Indemnitee in this Section 7.3, it the Proceeding that is being settled. Such Indemnitor and Indemnitee will cooperate with each other in the intent of the parties that Seller will assume the defense and settlement conduct of any CIE Claim; provided such Proceeding, including without limitation making available any non-privileged documents and materials in its possession that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect necessary to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by claim or proceeding keeping the Indemnified Party prior to any assumption by the Indemnifying Party other party informed of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify all material developments and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant events relating to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderProceeding.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Health Alternatives Inc)
Third Party Claims. The obligations and liabilities of the Parties hereunder with shall be subject to the following terms and conditions:
(a) The Indemnified Party agrees to Indemnitee shall give the Indemnifying Party Indemnitor written notice in writing of the assertion commencement of any claim or demand made byclaim, charge, arbitration, grievance, action, suit, proceeding, or any other Action instituted by, any Person not investigation against it by an unaffiliated third party (each a Party to this Agreement (a “"Third Party Claim”") in promptly after receipt by the Indemnitee of notice thereof, and the Indemnitor may undertake and have control of the defense, compromise and settlement thereof with counsel of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify promptly the Indemnitor of such claim shall not relieve the Indemnitor for any liability that it may have with respect to such claim except to the extent the Indemnitor demonstrates that the defense of which indemnity such claim is prejudiced by such failure. The assumption of the defense, compromise and settlement of any such Third Party Claim by the Indemnitor shall be an acknowledgment of the obligation of the Indemnitor to indemnify the Indemnitee with respect to such claim hereunder, unless the Indemnitor gives written notice to the Indemnitee within thirty (30) days after receipt of the Indemnitee's notice that it disputes its liability to Indemnitee with respect to such Third Party Claim, notwithstanding its assumption of the defense thereof. If the Indemnitee desires to participate in, but not control, any such defense, compromise and settlement, it may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2do so at its sole cost and expense; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery event of a Indemnification Notice with respect conflict of interest between Indemnitor and Indemnitee, unless the Indemnitor shall have retained independent legal counsel acceptable to a Third Party ClaimIndemnitee to represent the Indemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified PartyIndemnitor shall pay Indemnitee's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim reasonable attorneys' fees for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)separate legal counsel.
(b) (i) With respect If the Indemnitor fails or refuses to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of undertake the defense of a Third Party Claim will be reimbursed within thirty (30) days after written notice has been given to the Indemnitor by the Indemnifying Party to Indemnitee, the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend control the defense, compromise and settlement of the Third Party Claim with counsel of its own choosing, and the costs and expenses of the Indemnitee in connection therewith shall be included as part of the indemnification claim of the Indemnitee hereunder. If the Indemnitee shall elect to exercise such right, the Indemnitor shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(c) No settlement of a Third Party Claim as to which notice has been given to Indemnitor by Indemnitee pursuant to SECTION 14.4(A) shall be made without the prior written consent by or on behalf of the Indemnitor, which consent shall not be unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $10,000 or less where the Indemnitor has not responded with counsel selected by thirty (30) business days of notice of a proposed settlement. If the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed Indemnitor assumes the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions no compromise or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed settlement thereof may be effected by the Indemnifying Party. The Indemnified Party Indemnitor without the Indemnitee's consent (which will participate in any such defense at its own expense not be unreasonably withheld or delayed) unless (Ai) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator there is no finding or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation admission of any material provided hereunder.
violation of law or any violation of the rights of any person, (ii) In the event sole relief provided is monetary damages and (iii) the Indemnifying Party (x) elects not compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense Indemnitee of a Third Party Claimrelease, fails to conduct the defense of such Third Party Claim in a form and substance reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party satisfactory to the effect that the Indemnifying Party has so failedIndemnitee, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense from all liability in respect of such Third Party Claim.
(d) In connection with the defense, compromise or settlement of any Third Party Claim, the Parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by any Party hereto and, as may reasonably be related to any such claim or action, shall provide access to the counsel, accountants and other representatives of each Party during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such other Party and will furnish to such other Party copies of all such documents as may reasonably be requested (certified, if requested); provided that all requests for information and exercise of rights of access hereunder shall be conducted through a representative designated by the Party upon whom such request is made and in a manner that will not impact adversely and unreasonably the normal conduct of such Party's business; provided, further, that the provisions of this SECTION 14.4(D) shall not require any Party to breach, violate or waive any privilege that would otherwise be available to such Party (including, without limitation, the attorney-client privilege).
Appears in 1 contract
Third Party Claims. (a) The party making a claim under this Article 9 is referred to as the “Indemnified Party” and the party against whom such claims are asserted under this Article 9 is referred to as the “Indemnitor”. If any Indemnified Party agrees to give the Indemnifying Party receives notice in writing of the assertion or commencement of any claim Proceeding made or demand made by, or any other Action instituted by, brought by any Person who is not a Party party to this Agreement or an Affiliate of a party to this Agreement (a “Third Third-Party Claim”) against such Indemnified Party with respect to which the Indemnitor is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnitor prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnitor of its indemnification obligations, except and only to the extent that the Indemnitor is actually and materially prejudiced by reason of such failure. Such notice by the Indemnified Party (the “Third-Party Claim Notice”) shall describe the Third-Party Claim in respect reasonable detail, shall include copies of which indemnity may all written evidence thereof and all correspondence from or to such third party (or its Representatives) related to the matter giving rise to such Third-Party Claim (provided, that any confidential or privileged materials shall not be sought under Section 7.1 in accordance required to be disclosed by the Indemnified Party other than as needed for the defense of the Third-Party Claim, and the Indemnitor agrees to enter into a commercially reasonable confidentiality and non-use agreement with the Indemnified Party with respect to such information) and shall indicate the estimated amount, if reasonably practicable, of the Damages that has been sustained by the Indemnified Party. The Indemnitor shall have the right to participate in or, by giving written notice procedures set forth (the “Election to Defend”) to the Indemnified Party within twenty (20) Business Days after Indemnitor’s receipt of the Third-Party Claim Notice in Section 7.2which the Indemnitor shall acknowledge its indemnification obligations with respect to the Third-Party Claim subject to the terms and conditions of this Article 9 to the extent such Third-Party Claim is proved to be valid, to assume and control the defense of any Third-Party Claim at the Indemnitor’s expense and by the Indemnitor’s own counsel, which shall be reasonably acceptable to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense; provided, however, that the Indemnitor shall not be permitted to assume the defense of a Third-Party Claim if the matter that is the subject of the Third-Party Claim seeks as the primary cause of action the imposition of an equitable or injunctive remedy against the Indemnified Party or any delay of its Affiliates. In the event that the Indemnitor assumes the defense of any Third-Party Claim, subject to Section 9.6(b): (i) it shall have the right to take such action as, in delivering its reasonable and good faith business judgment, it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any Indemnification Notice will not affect such Third-Party Claim in the indemnification provided hereundername and on behalf of the Indemnified Party; and (ii) the Indemnified Party shall have the right, except at its own cost and expense, to participate in the defense of any Third-Party Claim with counsel selected by it subject to the extent Indemnitor’s right to control the Indemnifying defense thereof. If the Indemnitor chooses not to defend any Third-Party will have been materially prejudiced as Claim by failure to deliver on a result of such delay. From and after timely basis the delivery of a Indemnification Notice with respect Election to a Third Defend or is otherwise not entitled to defend any Third-Party Claim, the Indemnified Party will deliver may defend against such Third-Party Claim and, subject to Section 9.6(b), consent to the Indemnifying Partyentry of any judgment or enter into any settlement with respect to the Third-Party Claim in any manner it may deem appropriate, within ten (10) Business Days after and thereafter seek indemnification pursuant to this Article 9 for Damages resulting from such Third-Party Claim. In addition, if the Indemnified Party's receipt thereofIndemnitor has assumed defense of the Third-Party Claim and if a potential or actual conflict of interest shall exist, true, correct and complete copies of all material notices and documents (including court papers) received by then the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim entitled to retain one separate legal counsel, and to be reimbursed for purposes the reasonable fees and expenses of the procedures set forth such counsel. Seller and Buyer shall cooperate with each other in this Section 7.3, it being the intent of the parties that Seller will assume all reasonable respects in connection with the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Third-Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention andreasonable access, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records reasonable advance written notice and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis during normal business hours, to provide additional information personnel and explanation the right to examine and copy any accounts, documents or records, without expense (other than reimbursement of any material provided hereunder.
(iiactual out-of-pocket expenses) In to the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claimdefending party, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming may be reasonably requested for the defense and preparation of a Third Party Claim, fails to conduct the defense of such Third Third-Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from provided, that any confidential or privileged materials shall not be required to be disclosed by the Indemnified Party other than as needed for the defense of the Third-Party Claim, and the Indemnitor agrees to the effect that the Indemnifying Party has so failed, enter into a commercially reasonable confidentiality and non-use agreement with the Indemnified Party will have the right but not the obligation with respect to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claiminformation).
Appears in 1 contract
Third Party Claims. (ai) The Indemnified In order for a party (the “Indemnitee”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of, or involving a claim or demand made by any Person against the Indemnitee (a “Third-Party agrees to give Claim”), such Indemnitee must notify the Indemnifying Party notice party from whom indemnification hereunder is sought (the “Indemnitor”) in writing of the assertion of any Third-Party Claim no later than thirty (30) days after such claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement is first asserted (a “Third Third-Party ClaimClaim Notice”). A Third-Party Claim Notice shall state in reasonable detail the amount or estimated amount of such claim, and Seller /s/ AG Purchaser /s/ CD shall identify the specific basis (or bases) for such claim, including the representations, warranties or covenants in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification this Agreement alleged to have been breached. Failure to give a Third-Party Claim Notice will shall not affect the indemnification provided hereunder, hereunder except to the extent the Indemnifying Party will Indemnitor shall have been materially actually prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimThereafter, the Indemnified Party will Indemnitee shall deliver to the Indemnifying PartyIndemnitor, within ten (10) Business Days after the Indemnified Party's receipt thereofwithout undue delay, true, correct and complete copies of all material notices and documents (including court papers) papers received by the Indemnified Party Indemnitee) relating to the Third Party Claim. Any CIE Claim shall be considered a Third Third-Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if so long as any such exposure is created disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that results may be available to the Indemnitee in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)connection therewith.
(bii) (i) With respect to If a Third Third-Party ClaimClaim is made against an Indemnitee, the Indemnifying Party will Indemnitor shall be entitled to participate, at its expense, in the defense thereof. Notwithstanding the foregoing, if (A) the Indemnification Threshold has been exceeded, (B) no claim for injunctive relief is being made against Indemnitee, and (C) it is reasonably likely that the Indemnitee will not suffer a Loss in excess of Indemnitor’s indemnification obligation hereunder, the Indemnitor may elect to assume and control the defense thereof with counsel selected by the Indemnitor that is reasonably acceptable to Indemnitee. If the Indemnitor assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any Indemnitor, it being understood that the Indemnitor shall control such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and defense; provided, that, Indemnitee’s expenses of counsel shall be an indemnified Loss for purposes of this Article 9 if such counsel reasonably concludes that a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual conflict or potential differing interests conflict exists between them or Indemnitee and Indemnitor that would make separate representation advisable. If the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party Indemnitor so assumes the defense of a Third any Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B)Claim, all such expenses incurred by of the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will indemnified parties shall reasonably cooperate with the Indemnitor in the defense or prosecution of a Third Party Claimthereof. Such cooperation will include shall include, at the expense of the Indemnitor, the retention and, and (upon the Indemnifying Party's Indemnitor’s request, ) the provision to the Indemnifying Party Indemnitor of records and information which are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In . If the event Indemnitor has assumed the Indemnifying defense of a Third-Party Claim, (x) elects the Indemnitee shall not to defend admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnified Party against a Third Party Claim, whether by Indemnitor’s prior written consent (which consent shall not giving the Indemnified Party timely notice of its desire to so defend be unreasonably withheld or otherwisedelayed); (y) is not entitled the Indemnitee shall agree to defend the Third any settlement, compromise or discharge of a Third-Party Claim as a result of which the Indemnified Party's election to defend Indemnitor may recommend and which by its terms releases the Third Indemnitee from any liability in connection with such Third-Party Claim as provided in Section 7.3(b)(i)without cost or expense and without any admission of violation, injunction or agreement to take or restrain from taking any action; or and (z) after assuming the defense Indemnitor shall not, without the written consent of a Third Party Claimthe Indemnitee, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party enter into any settlement, compromise or discharge or consent to the effect that entry of any judgment which imposes any expense, obligation or restriction upon the Indemnifying Party has so failedIndemnitee or requires the Indemnitee to admit or acknowledge to any fact or event, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense including any violation of such Third Party ClaimLaw.
Appears in 1 contract
Sources: Securities Purchase Agreement (Rudana Investment Group AG)
Third Party Claims. Any Person making a claim for indemnification under this Section 6.2 (aan “Indemnitee”) The Indemnified Party agrees to give shall notify the Indemnifying Party notice indemnifying party (an “Indemnitor”) of the claim in writing of the assertion promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim or demand made byagainst it (if by a third party), or any other Action instituted bydescribing the claim, any Person not a Party to this Agreement the amount thereof (a “Third Party Claim”if known and quantifiable) in respect of which indemnity may be sought under Section 7.1 in accordance with and the notice procedures set forth in Section 7.2basis thereof; provided, however, provided that any delay in delivering any Indemnification Notice will such notice required to be provided to Sellers as Indemnitors pursuant hereto shall be delivered to Seller Representative; provided further that the failure to so notify an Indemnitor shall not affect relieve the indemnification provided hereunder, Indemnitor of its obligations hereunder except to the extent that (and only to the Indemnifying Party will have extent that) the Indemnitor has been materially prejudiced as a result of such delaythereby. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver Any Indemnitor (or to the Indemnifying Party, within ten (10) Business Days after extent the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered Indemnitor is a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such eventSeller, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(bRepresentative) (i) With respect to a Third Party Claim, the Indemnifying Party will shall be entitled to participate in the defense thereof andof such action, if it so electslawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereofthereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided that, unless such Third Party Claim is reasonably likely prior to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days Indemnitor (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party Indemnitor is required to indemnify and hold harmless the Indemnified Party froma Seller, against and in respect Seller Representative) assuming control of Losses incurred or suffered by the Indemnified Party such defense it shall, within 30 days of its receipt of an indemnification claim, first verify to the extent arising from Indemnitee in writing that such Third Party Claim. If Indemnitor shall be responsible (with no reservation of any rights) for all liabilities and obligations relating to such claim for indemnification; and provided, further, that:
(a) the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, Indemnitee shall be entitled to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate from the counsel employed shall be borne by the Indemnifying Party. The Indemnified Party will participate in Indemnitee (other than any fees and expenses of such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party separate counsel that are both named parties incurred prior to the proceedings and a Governmental Entity, arbitrator date the Indemnitor or arbitration panelSeller Representative, as applicable, with jurisdiction over effectively assumes control of such defense which, notwithstanding the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedforegoing, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will shall be borne by the Indemnifying Party. Each Party will Indemnitor, and except that the Indemnitor shall pay the reasonable fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(b) the Indemnitor or Seller Representative, as applicable, shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and the Indemnitor shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi criminal proceeding, action, indictment, allegation or investigation; (2) the Indemnitee reasonably cooperate believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be materially detrimental to the Indemnitee’s future business prospects; (3) the claim seeks an injunction or equitable relief against the Indemnitee; (4) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (5) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor or Seller Representative, as applicable, failed or is failing to vigorously prosecute or defend such claim; (6) the claim is with respect to Taxes, (7) the Indemnitee reasonably believes that the Indemnitor lacks the financial resources to satisfy any Losses relating to the claim, or (8) the claim for indemnification would reasonably be expected to result in greater liability to the Indemnitee than the Indemnitor, taking into account the Deductible and other limitations on indemnification herein;
(c) if the Indemnitor or Seller Representative, as applicable, shall control the defense or prosecution of any such claim, such Person shall obtain the prior written consent of the Indemnitee before entering into any settlement of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not claim or ceasing to defend the Indemnified Party against a Third Party Claimsuch claim if, whether by not giving the Indemnified Party timely notice of its desire pursuant to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party's election Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to defend such claim, without prejudice; and
(d) if the Third Party Claim Indemnitor or Seller Representative, as provided in Section 7.3(b)(i); applicable, is not entitled to, or (z) after assuming the defense of a Third Party Claimdoes not, fails to conduct the defense assume control of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party defense pursuant to the effect preceding provisions of this Section 6.4, the Indemnitee shall control such defense without waiving any right that the Indemnifying Party has so failed, Indemnitee may have against the Indemnified Party will have the right but not the obligation Indemnitor for indemnification pursuant to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimthis Section 6.4.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give In the Indemnifying Party notice in writing event of the assertion of any claim or demand made bythird party Claim against a Person entitled to be indemnified under this Article 7 (each, or any other Action instituted byan “Indemnitee”), any the Person not a Party allegedly required to provide indemnification protection under this Agreement Article 7 (a each, an “Third Party ClaimIndemnitor”) in respect of which indemnity may be sought under Section 7.1 in accordance with will have the notice procedures set forth in Section 7.2; providedright, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except subject to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures provisions set forth in this Section 7.3, it being 7.6 and the intent Indemnitor’s prior written confirmation to the Indemnitee that such third-party Claim is covered as an indemnification claim under this Agreement within thirty (30) days of the parties that Seller will receipt of a written notice (a “Claim Notice”) from the Indemnitee, to assume the defense of same at such Indemnitor’s expense, including the appointment and settlement selection of counsel on behalf of the Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 7.6(d), the Indemnitor will have the right to settle or compromise or take any corrective or remediation action with respect to any such Claim by all appropriate proceedings, and the Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the discretion of the Indemnitor. If the Indemnitor assumes the defense of any CIE such third-party Claim, the Indemnitee will be entitled, at its own cost and expense, to participate with the Indemnitor in the defense of any such Claim and to engage separate counsel of its choice for such purpose; provided that, notwithstanding the foregoing, the Indemnitor shall pay the reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the Indemnitee if (i) the Indemnitor consents in writing to paying such costs and expenses, (ii) the use of counsel chosen by the Indemnitor to represent the Indemnitee would, based on the good faith advice of such Indemnitee’s outside counsel, present such counsel with a conflict of interest, (iii) the named parties to such third-party Claim include both the Indemnitee and the Indemnitor and (A) the Indemnitee shall have reasonably concluded that there are or may be defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor, or (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor due to actual or potential differing interests between the Indemnitor and such Indemnitee, or (iv) the Indemnitor fails to assume such defense or engage counsel reasonably satisfactory to the Indemnitee, in such eventeach case, Seller will use reasonable best efforts not to create any bad faith exposure for Buyerin a timely manner; provided, andfurther, that, for the avoidance of doubt, if such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 7.6. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such exposure is created that results third-party Claim until such time as the Indemnitor agrees to assume the defense of such Claim, and any costs or expenses incurred by the Indemnitee in connection therewith will be Losses hereunder and subject to any indemnification in accordance with and subject to the terms of this Article 7. If the Indemnitor has assumed the defense of a third- party Claim pursuant to this Section 7.6, it will (x) keep the Indemnitee advised of the Buyer Indemnified Partiesstatus of such third-party Claim and the defense thereof on a reasonably current basis, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant (y) reasonably consult with the Indemnitee with respect to Section 7.1(a)(ii)the defense and settlement thereof, and (z) consider in good faith the recommendations made by the Indemnitee with respect thereto.
(b) Notwithstanding the foregoing, the Indemnitor will not be entitled to control the defense of any third-party Claim if such control or defense
(i) With respect would lead to a conflict or potential conflict between the Indemnitee and the Indemnitor or (ii) such Third Party Claimaction is (A) for equitable or injunctive relief or any claim that would impose criminal liability or criminal damages, or (B) in the reasonable opinion of the Indemnitee, the Indemnifying Party will be entitled to participate in third-party Claim could have a material adverse effect on the defense thereof andbusiness, if it so electsassets, Losses, condition (financial or otherwise) or results of operations of the Indemnitee.
(c) If the Indemnitor (i) does not expressly elect to assume the defense thereofof such third-party Claim within the time period and otherwise in accordance with Section 7.6(a), unless such Third Party Claim (ii) is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election not otherwise entitled to assume the defense of such Third Party action pursuant to Section 7.6(b), or (iii) after assuming such defense, fails to use commercially reasonable efforts to diligently prosecute such Claim. All , the Indemnitee may assume control of such defense and the reasonable costs and expenses of such defense (including fees and expenses of counsel) shall be Losses incurred by the Indemnified Party prior hereunder, subject to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party indemnification in accordance with and subject to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect terms of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claimthis Article 7. If the Indemnifying Party notifies Indemnitee assumes the Indemnified Party within control of such defense, then the Defense Notice Period that it elects to defend such Third Party ClaimIndemnitor shall be entitled, it will have the right to so defend at its sole option and expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant such Claim or any settlement negotiations with respect to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(iid) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party Notwithstanding anything to the effect that the Indemnifying Party has so failedcontrary in this Agreement, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim Indemnitor will not be adversely affected by assuming permitted to (i) settle, compromise, take any corrective or remedial action, or enter into an agreed judgment or consent decree, in each case, that subjects the defense Indemnitee to any criminal liability, requires an admission of such Third Party Claim.guilt or wrongdoing on the part of the Indemnitee or imposes any continuing obligation on, or requires any payment from the Indemnitee, or
Appears in 1 contract
Sources: Operating Services Agreement
Third Party Claims. (a) As used herein, an "Indemnified Party" means a Purchaser Indemnitee ----------------- seeking indemnification pursuant to Section 11.2(a) hereof or a Seller --------------- Indemnitee seeking indemnification pursuant to Section 11.2(b) hereof. The --------------- Indemnified Party agrees to give the Indemnifying Party other party ("Indemnitor") prompt written ---------- notice in writing of the assertion of any claim or demand made byevent, or any claim, action, suit, demand, assessment, investigation, arbitration or other Action instituted by, any Person not proceeding by or in respect of a Party to this Agreement third party (a “"Third Party Claim”") in respect of which indemnity it has knowledge, for which such Indemnified ----------------- Party is entitled to indemnification under this Article XI (including in any case copies of any summons, complaint or other pleading which may be sought under Section 7.1 have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same). No delay on the part of an Indemnified Party in accordance with giving the Indemnitor notice procedures set forth in Section 7.2; providedof a Third Party Claim shall relieve the Indemnitor from any obligation hereunder unless the Indemnitor is prejudiced thereby.
(b) Within twenty days of delivery of such written notice, howeverthe Indemnitor may, that at the expense of the Indemnitor, elect to take all necessary steps properly to contest any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement satisfactory to the extent Indemnitor. If the Indemnifying Indemnitor makes the foregoing election, an Indemnified Party will have been materially prejudiced as a result the right to participate at its own expense in all proceedings. If the Indemnitor does not make such election, an Indemnified Party shall be free to handle the prosecution or defense of any such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, will take all necessary steps to contest the Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement satisfactory to such Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after and will notify the Indemnified Party's receipt thereofIndemnitor of the progress of any such Third Party Claim, truewill permit the Indemnitor, correct at the sole cost of the Indemnitor, to participate in such prosecution or defense and complete copies of will provide the Indemnitor with reasonable access to all material notices relevant information and documents (including court papers) received by the Indemnified Party documentation relating to the Third Party ClaimClaim and the prosecution or defense thereof. Any CIE Claim shall be considered a In any case, the party not in control of the Third Party Claim for purposes will cooperate with the other party in the conduct of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (prosecution or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred Notwithstanding the foregoing, if an Indemnified Party is offered a written settlement proposal by a third party that has as its sole component the payment of money by the Indemnified Party prior and the Indemnitor recommends to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party fromin writing that it accept such settlement proposal (the "Sanctioned Settlement") and the --------------------- Indemnified Party refuses to accept such settlement proposal, against and in respect of Losses incurred or suffered such event if the ultimate settlement terms agreed to by the Indemnified Party to with such third party or the extent arising from such Third Party Claim. If the Indemnifying Party notifies final monetary damages award against the Indemnified Party within (either, a "Final Settlement Amount"), is greater than the Defense Notice Period that it elects to defend such Third Party Claim, it will have amount of the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party ClaimSanctioned ----------------------- Settlement, the Indemnified Party will have shall be responsible for the right, but not differential between the obligation, Final Settlement Amount and the Sanctioned Settlement and the Indemnitor's liability shall be limited to participate the amount specified in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderSanctioned Settlement.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Phoenix Technologies LTD)
Third Party Claims. If any claim (a"Asserted Claim") The Indemnified Party agrees covered by the foregoing indemnities is asserted by a third party against any indemnified party ("Indemnitee"), it shall be a condition to the obligations under this Section 10 that the Indemnitee shall promptly give the Indemnifying Party indemnifying party ("Indemnitor") notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 thereof in accordance with Section 13.05. The Indemnitee shall give Indemnitor an opportunity to control negotiations toward resolution of such claim without the notice procedures set forth necessity of litigation, and, if litigation ensues, to defend the same with counsel reasonably acceptable to Indemnitee, at Indemnitor's expense, and Indemnitee shall extend reasonable cooperation at Indemnitor's expense in Section 7.2connection with such defense; provided, however, that the Indemnitor shall not have the right to control the defense until the Indemnitor agrees to indemnify the Indemnitee in full irrespective of any delay applicable indemnity limitations set forth in delivering any Indemnification Notice will not affect Section 10.04. Notwithstanding the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimforegoing, the Indemnified Party will deliver Indemnitor shall only have the right to assume the Indemnifying Party, defense as provided above in connection with claims for damages and shall have no right to assume the defense in connection with any claims or actions seeking equitable relief or involving fines or criminal matters. If the Indemnitor fails to assume control of the negotiations prior to litigation or to defend such action within ten (10) Business Days after days of receipt of such notice (or by such other advance notice that does not unduly prejudice the Indemnified Party's receipt thereofIndemnitee) by Indemnitee, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitee shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3entitled, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts but not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so electsobligated, to assume the defense thereof, unless control of such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (negotiations or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will action, and Indemnitor shall be reimbursed by the Indemnifying Party liable to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses Indemnitee for its expenses reasonably incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information therewith which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderIndemnitor shall promptly pay.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Frontiervision Capital Corp)
Third Party Claims. (a) The If any Indemnified Party agrees to give the Indemnifying Party Person receives notice in writing of the assertion or commencement of any claim Action made or demand made by, or any other Action instituted by, brought by any Person who is not a Party party to this Agreement or an Affiliate of a party to this Agreement or a representative of the foregoing (a “Third Third-Party Claim”) against such Indemnified Person with respect to which the Indemnifying Person is obligated to provide indemnification under this Agreement, the Indemnified Person shall give the Indemnifying Person (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative) reasonably prompt written notice thereof, but in respect any event not later than thirty (30) calendar days after receipt of which indemnity may be sought under Section 7.1 in accordance with the such notice procedures set forth in Section 7.2; providedof such Third-Party Claim. The failure to give such prompt written notice shall not, however, that any delay in delivering any Indemnification Notice will not relieve the Indemnifying Person of its indemnification obligations or otherwise affect the indemnification provided hereunder, hereunder except to the extent, and only to the extent that, the Indemnifying Party will Person shall have been materially prejudiced as a result of such delayfailure. From Such notice by the Indemnified Person shall describe the Third-Party Claim in reasonable detail (to the extent then known), and after shall indicate the delivery estimated amount, if reasonably practicable and to the extent then known, of a Indemnification Notice the Loss that has been or may be sustained by the Indemnified Person. The Indemnifying Person (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative) shall have the right to participate in, or by giving written notice to the Indemnified Person, which notice shall include an admission of the Indemnifying Persons’ indemnification obligation under this Articles VII with respect to such Third-Party Claim, to assume the defense of any Third-Party Claim at the Indemnifying Person’s (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative’s) expense and by the counsel of the Indemnifying Person (or if the Company Securityholders are the Indemnifying Persons, the Securityholders’ Representative), and the Indemnified Person shall cooperate in good faith in such defense; provided that if the Indemnifying Person is the Company Securityholders, the Securityholders’ Representative shall not have the right to defend or direct the defense of any such Third-Party Claim if: (i) such Third-Party Claim related to or arises in connection with any criminal proceeding; (ii) the Third-Party Claim is asserted directly by or on behalf of a Third Person that is a supplier or customer of the Company; (iii) the Third-Party Claim seeks an injunction, equitable relief, or other non-monetary relief against the Indemnified Persons; (iv) the amount of Losses alleged in such Third-Party Claim is in excess of the amount then remaining under the Cap at the time Parent Indemnified Person gives the Securityholders’ Representative notice of such Third-Party Claim, after taking into account the sum of all Losses and expenses previously recovered by Parent Indemnified Persons hereunder plus all Losses and expenses specified in any then unresolved claims made by Parent Indemnified Persons pursuant to this Article VIII, or the Indemnifying Person failed or is failing to use diligent, reasonable and good faith efforts to defend such Third-Party Claim; or (v) a Parent Indemnified Person seeks recourse under the R&W Policy and therefore such Parent Indemnified Person and/or the R&W Insurance Company under the R&W Policy has the right to control (whether directly or indirectly) the defense thereof. In the event that the Indemnifying Person assumes the defense of any Third-Party Claim, subject to Section 8.5(c), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Person. The Indemnified Person shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Person’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Person, provided that if in the reasonable opinion of counsel to the Indemnified Person, there are legal defenses available to an Indemnified Person that are different from or additional to those available to the Indemnifying Person, the Indemnifying Person shall be liable for the reasonable fees and expenses of counsel to the Indemnified Person in each jurisdiction for which the Indemnified Person determines counsel is required, paid monthly within fifteen (15) days of invoice date. If the Indemnifying Person elects not to compromise or defend such Third-Party Claim, fails to promptly notify the Indemnified Person in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third-Party Claim, the Indemnified Person may, subject to Section 8.5(c), pay, compromise, defend such Third-Party will deliver to the Indemnifying PartyClaim and seek indemnification for any and all Losses based upon, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party arising from or relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Third-Party Claim, to the Indemnifying Party will extent that such Losses are available to be entitled to participate so indemnified in accordance with the terms hereof. The Securityholders’ Representative and Parent shall cooperate with each other in all reasonable respects in connection with the defense thereof andof any Third-Party Claim, if it so elects, including making available records relating to assume the defense thereof, unless such Third Third-Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates furnishing, without expense (other than as a result reimbursement of monetary damages. Unless actual out-of-pocket expenses) to the Indemnified Party will have notified the Indemnifying Party defending party, management employees of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice non-defending party as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt reasonably necessary for the preparation of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Third-Party Claim.
Appears in 1 contract
Third Party Claims. Promptly after receipt by any party (athe “Indemnitee”) The Indemnified Party agrees to give the Indemnifying Party of notice in writing of the assertion of any claim Claim or demand made by, or the commencement of any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) action against it in respect of which indemnity or reimbursement may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; providedhereunder (an “Assertion”), however, that or any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice Claim whatsoever with respect to infringement by a Third Party Claim, the Indemnified Party will deliver party of Intellectual Property Rights of a third party with respect to the Indemnifying PartyLicensor Design, within ten (10) Business Days after Licensor product, Licensee Design or Licensee product, as the Indemnified Party's receipt thereofcase may be, true, correct and complete copies such Indemnitee shall promptly give written notice of all material notices and documents (including court papers) received by the Indemnified Party relating Assertion to the Third Party Claimparty obligated to provide indemnification pursuant to this Article 9 (the “Indemnitor”). Any CIE Claim The Indemnitor shall be considered a Third Party Claim for purposes of have the procedures set forth in this Section 7.3, it being right and the intent of the parties that Seller will obligation to assume the defense and settlement of such Assertion, at its own expense, with counsel chosen by the Indemnitor. Notwithstanding that the Indemnitor shall be obligated to assume the defense of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party ClaimAssertion, the Indemnifying Party will be entitled Indemnitee shall have the right to participate in the investigation and defense thereof andthereof, if it so electswith separate counsel chosen by such Indemnitee, but in such event the fees and expenses of such counsel shall be paid by such Indemnitee, unless: (i) the Indemnitor shall have agreed to pay such fees and expenses; or (ii) the Indemnitor shall have failed to assume the defense thereofof such Assertion. Notwithstanding anything to the contrary in this Article 9, unless the Indemnitor shall not, without the written consent of such Third Party Claim is reasonably likely to Indemnitee (which consent shall not be unreasonably withheld or delayed), settle or compromise any action in any manner that materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates affects such Indemnitee, other than as a result of monetary damages. Unless money damages or other money judgments, provided, however, that the Indemnified Party will have notified Indemnitor may, without the Indemnifying Party written consent of the existence Indemnitee, settle or compromise any action or consent to the entering of any judgment which is for money damages only so long as the condition set forth in Indemnitor pays such money damages, and includes as an unconditional term thereof the preceding sentence, delivery by the Indemnifying Party will have thirty (30) days (claimant or plaintiff to such lesser number Indemnitee of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense duly executed written release of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and Indemnitee from all liability in respect of Losses incurred such Assertion. The obligation of each Indemnitor under this Article 9 is conditioned on the Indemnitee’s agreement that if the Licensor Design, Licensor product, Licensee Design or suffered by Licensee product, or the Indemnified Party use or operation thereof, becomes, or is likely to become, the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense subject of a Third Party Claim, the Indemnified Party Indemnitee will have the rightpermit Indemnitor, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) option and expense, either to procure the Indemnifying Party and right for the Indemnified Party are both named parties other party to continue using the proceedings and a Governmental Entity, arbitrator Intellectual Property or arbitration panel, as applicable, to replace or modify with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
acceptable substitute (ii) In the event the Indemnifying Party (x) elects acceptance not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to be unreasonably withheld) having equal or superior functional capability so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimbecomes non-infringing.
Appears in 1 contract
Third Party Claims. (a) The In the event that an Indemnified Party agrees to give the Indemnifying Party notice in writing becomes aware of the assertion of any a third party claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in respect an indemnification claim pursuant to this Article VIII, such Indemnified Party shall notify the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from a Seller, such Seller) of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2such Third Party Claim; provided, however, that any delay in delivering any Indemnification Notice will the failure to give prompt notice shall not affect the indemnification provided hereunder, hereunder except to the extent the Shareholder Representative, on behalf of the Indemnifying Party will have Persons, has been actually and materially prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying PartyThe Shareholder Representative shall, within ten (10) Business Days after the Indemnified Party's of receipt thereofof such notice, true, correct and complete copies of all material notices and documents (including court papers) received by the notify such Indemnified Party relating whether the Shareholder Representative desires to undertake and conduct the defense of such Third Party Claim. Any CIE Claim shall be considered (provided that the Shareholder Representative may not assume the defense of a Third Party Claim for purposes (i) unless the then remaining amount of the procedures set forth Escrow Fund (together with the remaining amounts in this Section 7.3, it being the intent Shareholder Representative Expense Fund) would be sufficient to satisfy all indemnification obligations that could reasonably be expected to become payable in respect of the parties that Seller will assume Third Party Claim if adversely determined and all other pending or unsatisfied claims made on the Escrow Fund, plus all of the legal fees and expenses reasonably expected to be incurred by the Shareholder Representative, (ii) if such Third Party Claim -71- seeks any injunction, declaratory judgment or other non-monetary order or equitable relief against any Indemnified Party, (iii) if the litigation or outcome of such Third Party Claim would reasonably be expected to impact Parent’s or Purchaser’s business in addition to the monetary damages paid in the claims (including, without limitation, any claim involving the Intellectual Property of the Company) or (iv) if counsel to the Shareholder Representative is not reasonably satisfactory to Parent). If the Shareholder Representative assumes the defense and settlement of a Third Party Claim, notwithstanding any CIE Claim; provided that in other provision of this Agreement, the Sellers shall be liable for the full amount of all Losses incurred by the Indemnified Parties arising out of or relating to such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, Third Party Claim (and, for the avoidance of doubt, if any such exposure is created that results in Losses without regard to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties limitations provided for such Losses pursuant in this Article VIII) and the Shareholder Representative shall take all actions necessary or appropriate to Section 7.1(a)(ii).
(b) (i) With respect to a defend against the Third Party Claim. Parent or Purchaser may, the Indemnifying Party will be entitled to at its own expense, participate in the defense thereof and, if it so elects, to assume the defense thereof, unless of any such Third Party Claim is reasonably likely to materially and adversely affect assumed by the Shareholder Representative. In the event any Indemnified Party and/or shall conclude that there may be legal defenses or rights available to it which are different from, in actual or potential conflict with, or additional to those available to the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Shareholder Representative, such Indemnified Party will have notified or Parties shall be entitled to select separate counsel to act on its behalf and the Indemnifying Party fees and expenses of such separate counsel shall be additional indemnifiable Losses under this Article VIII; provided, however, that if such actual or potential conflict arises between the existence positions of Parent and the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedingsShareholder Representative, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim conditions in clauses (i) through (iv) above is satisfied, then Parent or Purchaser shall have the “Defense Notice Period”) to notify the Indemnified Party of its election right to assume the control of the defense of such the Third Party Claim. All Losses incurred by The Shareholder Representative may not settle any matter (in whole or in part) without the consent of Parent or Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Parent or Purchaser may withhold consent to any settlement in its discretion unless such settlement (A) includes a complete and unconditional release of Parent, Purchaser and/or the Indemnified Party prior to Parties, (B) excludes any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred injunctive or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable non-monetary relief applicable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental EntityParties, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in (C) excludes any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entityfinding or admission of fault, arbitrator liability or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation any violation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedlaw), and in the case of (A) which consent shall be deemed to have been given unless Parent or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner Purchaser shall have objected within twenty (20) days after receiving a written notice from request for such consent by the Indemnified Party Shareholder Representative. If the Shareholder Representative does not elect to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for defend against such Third Party Claim will not in accordance with this Section 8.6, then the Shareholder Representative, on behalf of the Sellers, shall be adversely affected by assuming the entitled to participate in any defense of such Third Party Claim, at its expense and without recourse to the Escrow Fund; provided, however, that Parent and/or Purchaser shall have full control over the litigation, including settlement and compromise thereof; provided, further that any such settlement shall not be determinative of the existence of or amount of Losses relating to such Third Party Claim, except with the consent of the Shareholder Representative, which consent shall not be unreasonably, withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Shareholder Representative shall have objected within twenty (20) days after a written request for such consent by Parent or Purchaser. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts paid, sustained, suffered, incurred or accrued by the Indemnified Parties in defense of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder, provided however, that the foregoing shall not impact the ability of the Shareholder Representative to object to the amount of any such Losses pursuant to Section 8.5 hereof. The Escrow Agent shall not disburse any portion of the Escrow Fund to any third party except in accordance with joint written instructions received from Parent or Purchaser, on the one hand, and the Shareholder Representative, on the other hand. In the event that the Shareholder Representative has consented to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this Article VIII to the amount of any Third Party Claim by Purchaser against the Escrow Fund, or against the Sellers directly, as the case may be, with respect to such settlement.
Appears in 1 contract
Sources: Share Transfer Agreement
Third Party Claims. (a) The In the event an Indemnified Party agrees becomes aware of a third- party claim that WatchGuard or such Indemnified Party believes is reasonably likely to give result in a demand for indemnification under this Article 6, WatchGuard shall notify the Indemnifying Party notice in writing Stockholder Representative of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2such claim; provided, however, that failure to so notify the Stockholder Representative shall not relieve the Stockholders from any delay in delivering any Indemnification Notice will not affect liability they have under this Article 6 or the indemnification provided hereunderEscrow Agreement with respect to such third-party claim, except to the extent the Indemnifying Party will have been materially prejudiced as Stockholder Representative demonstrates that the indemnifying party's ability to resolve such third-party claim is adversely affected by WatchGuard's failure to notify or such notice is not given prior to the Escrow Termination Date. That number of Escrow Shares that, in the reasonable judgment of WatchGuard, subject to the objection of the Stockholder Representative and the subsequent arbitration of the claim in accordance with Section 4(e) of the Escrow Agreement, would be necessary to satisfy a result of such delay. From and after the delivery of a Indemnification Notice claim for indemnification with respect to such third-party claim, if such third-party claim were to be determined in a Third Party Claim, matter adverse to the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating were to prevail in establishing its right to indemnification, shall remain in the Escrow Fund until such third-party claim and claim for indemnification have been resolved, subject to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes provisions of the procedures set forth in Section 6.4 of this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)Agreement.
(b) (i) With respect to Within 10 days of receipt of such notice of a Third Party Claimthird-party claim, the Indemnifying Party will Stockholder Representative shall be entitled to elect to participate in the defense thereof of such claim and, if it to the extent that the Stockholder Representative so electsdesires (unless any Stockholder is also party to such claim and either of the Indemnified Party or WatchGuard determines in good faith that joint representation would be inappropriate), to assume the defense thereof, unless of such Third Party Claim claim; provided that (i) the participation in or defense of such claim by the Stockholder Representative shall be at the sole cost and expense of the Stockholders; (ii) the Stockholder Representative shall not be entitled to assume defense of such claim without WatchGuard's written approval of legal counsel for such defense (which consent shall not be unreasonably withheld or delayed); (iii) the assumption of the defense of such claim shall conclusively establish that such claim is reasonably likely within the scope of and subject to materially indemnification by the Stockholders; and adversely affect (iv) no compromise or settlement of such claim may be effected by the Stockholder Representative without the prior written consent of the Indemnified Party and/or and WatchGuard unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any claims that may be made against the Indemnified Party's Affiliates Party or WatchGuard, (B) the sole relief provided is monetary damages that are paid in full by the Stockholders, and (C) neither the Indemnified Party nor WatchGuard will have any liability with respect to any compromise or settlement of such claim without its consent. In all other cases, WatchGuard shall have the right in its discretion to defend, compromise or settle any such claim; provided, however, that -------- ------- WatchGuard shall not settle such claim without the consent of the Stockholder Representative (which consent shall not be unreasonably withheld or delayed). If the Stockholder Representative consents in writing to any such settlement, the Stockholder Representative shall have no power or authority to object under any provision of this Article 6 or the Escrow Agreement to the amount of any claim by WatchGuard against the Escrow Shares consistent with such settlement. Notwithstanding the foregoing, if an Indemnified Party or WatchGuard determines in good faith that there is a reasonable probability that a claim or a compromise, settlement or adjudication of a claim may have a WatchGuard Material Adverse Effect, other than as a result of monetary damages. Unless damages for which it would be entitled to indemnification under this Article 6 or the Escrow Agreement, such Indemnified Party will have notified or WatchGuard may, by notice to the Indemnifying Party of Stockholder Representative, assume the existence of the condition set forth in the preceding sentenceexclusive right to defend, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedingscompromise, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of settle such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderclaim.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees If any person entitled to give the Indemnifying Party indemnification under this Agreement (an "Indemnitee") receives notice in writing of the assertion of any claim or demand made by, of the commencement of any action or proceeding by any other Action instituted by, any Person person that is not a Party party to this Agreement or a subsidiary of any such party (a “Third "Third-Party Claim”") in respect against such Indemnitee, the Indemnitee shall promptly provide written notice thereof (including a description of the Third- Party Claim and an estimate of any Indemnifiable Losses (which indemnity may estimate shall not be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except conclusive as to the extent the Indemnifying Party will have been materially prejudiced as a result final amount of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver Indemnifiable Losses) to the party required tO provide indemnification under this Agreement (the "Indemnifying Party, ") within ten (10) Business Days after the Indemnified PartyIndemnitee's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third notice of such Third-Party Claim. Any CIE Claim delay by the Indemnitee in providing such written notice shall be considered a Third not relieve the Indemnifying Party Claim of any liability for purposes indemnification hereunder except to the extent that the rights of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in Indemnifying Party are materially prejudiced by such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)delay.
(b) (i) With respect to a Third Party Claim, the The Indemnifying Party will be entitled shall have the right to participate in or, by giving written notice to the defense thereof and, if it so electsIndemnitee, to assume the defense thereof, unless such Third of any Third-Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified at such Indemnifying Party's Affiliates other than as a result expense and by such Indemnifying Party's own counsel (which shall be reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense. The Indemnifying Party shall not be liable for any legal expenses incurred by the Indemnitee after the Indemnitee has received notice of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Party's intent to assume the defense of such Third a Third-Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by ; provided, however, that if the Indemnifying Party of fails to take steps reasonably necessary to diligently pursue the defense of a Third such Third-Party Claim will be reimbursed by within ten (10) Business Days of receipt of notice from the Indemnitee that such steps are not being taken, the Indemnitee may assume its own defense and the Indemnifying Party to shall be liable for the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense reasonable costs thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(iic) In The Indemnifying Party may settle any Third-Party Claim which it has elected to defend so long as the event written consent of the Indemnitee to such settlement is first obtained (which consent shall not be unreasonably withheld). The Indemnitee shall not settle any Third-Party Claim without the written consent of the Indemnifying Party (x) elects which consent shall not to defend be unreasonably withheld). In the Indemnified Party against event that a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Third-Party Claim involves a proceeding as to which both Citizens and ELI may be Indemnifying Parties, the parties hereto agree t▇ ▇ooperate in good faith in a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the joint defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Third-Party Claim.
Appears in 1 contract
Third Party Claims. (a) The In the event any Parent Indemnified Party agrees seeks indemnification under Section 8.2, it shall provide prompt written notice to give the Indemnifying Party notice in writing Founders of the assertion of any claim or demand made bythe commencement of any suit, action or proceeding by any other Action instituted by, any Person not a Party to this Agreement third-party (a “Third Third-Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the hereunder. Such notice procedures shall set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will reasonable detail such Third-Party Claim and the basis for and anticipated amount of indemnification. The failure to so notify the Founders shall not affect relieve the indemnification provided Founders of their obligations hereunder, except to the extent such failure shall have prejudiced the Indemnifying Founders.
(b) Subject to the limitations below and except as provided in Schedule 8.2 or Schedule 8.2A, the Founders shall be entitled to control and select counsel (which counsel shall not be unreasonably objected to by Parent) for such defense by delivering written notice within thirty (30) calendar days after receiving the Parent Indemnified Party’s notice of claim to such Parent Indemnified Party will have been materially prejudiced as a result of their intent to do so. If the Founders do not so elect to defend such Third-Party Claim or fail to diligently prosecute the defense of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Third-Party Claim, the Parent Indemnified Party will deliver shall have the right to control and select counsel (which counsel shall not be unreasonably objected to by the Founders) for such defense and, subject to the Indemnifying Partylimitations in this Article VIII, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct seek indemnification for any and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Losses based upon or arising from such Third-Party Claim. Any CIE Claim Notwithstanding the foregoing, it is understood and agreed that (i) Parent shall control and select counsel (which counsel shall not be considered a Third Party Claim for purposes unreasonably objected to by the Founders) in respect of the procedures matter set forth in this Section 7.3, it being the intent 2 of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for BuyerSchedule 8.2, and, for the avoidance of doubt, if the fees and expenses of such counsel incurred by any such exposure is created that results Parent Indemnified Party shall be Losses and subject to indemnity to the extent provided therein and (ii) Parent shall control and select counsel (which counsel shall not be unreasonably objected to by the Founders) in Losses to any respect of the Buyer matters set forth in Schedule 8.2A as provided in Schedule 8.2A and the fees and expenses of such counsel incurred by any Parent Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Party shall be Losses pursuant and subject to Section 7.1(a)(ii)indemnity to the extent provided therein.
(bc) If the Founders assume the control of the defense of any Third-Party Claim, (i) With the Founders shall obtain the prior written consent of the Parent Indemnified Party before entering into any settlement of such Third-Party Claim, which consent shall not be unreasonably withheld, delayed or conditioned, if the settlement does not release each applicable Parent Indemnified Party from all liabilities and obligations with respect to a Third such Third-Party Claim, the Indemnifying settlement admits culpability on the part of any Parent Indemnified Party will or the settlement imposes injunctive or other equitable relief against a Parent Indemnified Party or would reasonably be expected to adversely affect the ongoing business or operations of the Parent Indemnified Parties in any material respect and (ii) the Parent Indemnified Party shall be entitled to participate in (but not control) the defense thereof andof any Third-Party Claim and to employ separate counsel of its choice for such purpose, if it so electsprovided, that the fees and expenses of such separate counsel shall be paid by the Parent Indemnified Party, except as provided below. The Parent Indemnified Party and the Founders shall reasonably cooperate, and the Parent Indemnified Party shall cause its Affiliates to assume reasonably cooperate, in the defense thereof, unless such Third or prosecution of any Third-Party Claim is reasonably likely and shall furnish or cause to materially be furnished such records, information and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentencetestimony, the Indemnifying Party will have thirty (30) days (and attend such conferences, discovery proceedings, hearings, trials or such lesser number of days set forth in the Indemnification Notice appeals, as may reasonably be required requested in connection therewith. Notwithstanding an election by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Founders to assume the defense of such Third Party Claim. All Losses incurred by action or proceeding, the Parent Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend at its expenseemploy separate counsel and to participate in, with but not control, the defense of such action or proceeding. The Founders shall (subject to the other limitations herein) bear the reasonable fees, costs and expenses of one (1) firm of such separate counsel (in addition to one firm of local counsel for the requisite jurisdiction(s)) for the Parent Indemnified Parties if, but only if, (i) the Parent Indemnified Parties shall have been advised by counsel that an actual or potential conflict of interest makes representation by the same counsel or the counsel selected by the Indemnifying Founders inappropriate or (ii) the Founders shall have authorized in writing the Parent Indemnified Parties to employ such counsel at the Founders’ expense. No Founder shall be liable to indemnify any Parent Indemnified Party that for any settlement of any Third-Party Claim effected without its consent (which shall not be unreasonably withheld, conditioned or delayed).
(d) If any payment is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of made on a Third Third-Party Claim, the Indemnified Party will have the right, but not the obligationFounders shall be subrogated, to participate in the defense thereofextent of such payment, including to all rights and remedies of the opportunity Parent Indemnified Parties to participate in any discussions insurance benefits or correspondence other claims of the Parent Indemnified Parties with any Governmental Entity, respect to such Third-Party Claim and shall be entitled to employ counsel separate from pursue recovery against the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator applicable insurers or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party other persons in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimbenefits or other claims.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give In the Indemnifying Party notice in writing of the assertion case of any claim or demand made by, or any other third party Action instituted by, any Person not a Party as to this Agreement (a “Third Party Claim”) in respect of which indemnity may be indemnification is sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimby an Indemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Indemnitor shall have 20 Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification a Claim Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period Indemnitee that it elects to defend conduct and control such Third Party ClaimAction. If the Indemnitor elects to conduct and control such Action, it will the Indemnitor shall promptly reimburse the Indemnitee for the full amount of any Damages resulting from such Action, except fees and expenses of counsel for the Indemnitee incurred after the assumption of the conduct and control of such Action by the Indemnitor. If the Indemnitor does not give the foregoing notice, the Indemnitee shall have the right right, at the sole expense of the Indemnitor, to so defend conduct, control, settle and compromise such Action, and the Indemnitor shall cooperate with the Indemnitee in connection therewith, provided, that the Indemnitee shall permit the Indemnitor to participate in such conduct or settlement through counsel chosen by the Indemnitor, but the fees and expenses of such counsel shall be borne by the Indemnitor. If the Indemnitor gives the foregoing notice, subject to the first and second sentences of this Section 9.7, the Indemnitor shall have the right, at its expensethe sole expense of the Indemnitor, to conduct and control such Action with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Indemnitee, and the Indemnifying Party has duly assumed Indemnitee shall cooperate with the defense of a Third Party ClaimIndemnitor in connection therewith, provided, that (x) the Indemnified Party will have Indemnitor shall permit the right, but not the obligation, Indemnitee to participate in the defense thereof, including the opportunity to participate in any discussions such conduct or correspondence with any Governmental Entity, and to employ settlement through counsel separate from the counsel employed chosen by the Indemnifying Party. The Indemnified Party will participate in any Indemnitee, but the fees and expenses of such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will shall be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party ClaimIndemnitee, and making employees available on a mutually convenient basis to provide additional information and explanation (y) the Indemnitor may not compromise or settle any such Action without the consent of the Indemnitee (which consent will not be unreasonably withheld or delayed) unless (i) there is no finding or admission of any material provided hereunder.
violation of Law by the Indemnitee or any violation by the Indemnitee of the rights of any Person and such compromise or settlement will have no effect on any other claims that may be made against the Indemnitee, (ii) the sole relief provided is money Damages that are paid in full by the Indemnitor, (iii) the Indemnitee shall have no liability with respect to any compromise or settlement and (iv) such settlement includes an unconditional release in favor of the Indemnitee by the third-party claimant from all liability with respect to such claim. In the event case of any third party Action as to which indemnification is sought by the Indemnifying Party (x) elects not to defend Indemnitee which involves a claim for Damages other than solely for money Damages which could have a continuing effect on the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result business of the Indemnified Party's election to defend Indemnitee, the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming Indemnitee and the defense of a Third Party Claim, fails to Indemnitor shall jointly control the conduct the defense of such Third Party Claim Action. The parties hereto shall use their reasonable best efforts to minimize any Damages from claims by third parties and shall act in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party good faith in responding to, defending against, settling or otherwise dealing with such claims, notwithstanding any dispute as to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimliability under this Article IX.
Appears in 1 contract
Sources: Stock Purchase Agreement (Inter-Atlantic Financial, Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party If any Indemnitee receives notice in writing of the assertion of any claim or demand made byof the commencement of any action or proceeding by any entity that is not either a Surviving Corporation Indemnitee or a Verizon Indemnitee (each, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnitor is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnitor prompt written notice thereof, but in respect any event not later than ten calendar days after receipt of which indemnity may be sought under Section 7.1 in accordance with notice of such Third Party Claim, provided, however, that the notice procedures failure of an Indemnitee to notify the Indemnitor within the time period set forth herein shall only relieve the Indemnitor from its obligation to indemnify to the extent that the Indemnitor is materially prejudiced by such failure or delay (whether as a result of the forfeiture of substantive rights or defenses or otherwise). Upon receipt of notification of a Third Party Claim, the Indemnitor shall be entitled, upon written notice to the Indemnitee, to assume the investigation and defense thereof at such Indemnitor’s expense with counsel reasonably satisfactory to the Indemnitee, provided that the Indemnitor shall not have the right to assume the defense of any Third Party Claim in Section 7.2the event such Third Party Claim is primarily for injunctive relief or criminal penalty of the Indemnitee, and in any such case, the reasonable fees and expenses of counsel to the Indemnitee in connection with such Third Party Claim shall be considered “Losses” for purposes of this Agreement. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in the investigation and defense thereof; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to Indemnitee shall pay the extent the Indemnifying Party will have been materially prejudiced as a result fees and disbursements of such delay. From and after separate counsel unless (1) the delivery employment of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received such separate counsel has been specifically authorized in writing by the Indemnified Party relating to Indemnitor; (2) the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Indemnitor has failed to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party Claim within 20 calendar days after receipt of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, notice thereof with counsel selected by the Indemnifying Party that is reasonably acceptable satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions such Indemnitee; or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A3) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings proceeding in which such claim, demand, action or cause of action has been asserted include both the Indemnitor and a Governmental Entitysuch Indemnitee and, arbitrator or arbitration panelin the reasonable judgment of counsel to such Indemnitee, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of there exists one or more good faith defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party Indemnitee that are in conflict with those available to the Indemnitor or that the Indemnitor and Indemnitee have actual material conflicting interests with respect thereof to such claim, demand, action or (B) cause of action. Notwithstanding the Indemnified Party assumes foregoing, the defense Indemnitor shall not be liable for the fees and disbursements of a more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of an Indemnitee, which shall not be unreasonably withheld or delayed, the Indemnitor will not enter into any settlement of or consent to the entry of judgment in connection with any Third Party Claim after that (i) would lead to liability or create any financial or other obligation on the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedpart of the Indemnitee, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In does not contain, as an unconditional term thereof, the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result release of the Indemnified Party's election to defend the Third Party Claim as provided Indemnitee from all liability in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense respect of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for or such Third Party Claim will is not be adversely affected dismissed against the Indemnitee with prejudice and without the imposition of any financial or other obligation on the Indemnitee or (iii) admits the liability or fault of the Indemnitee (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to resolve a Third Party Claim and the Indemnitor notifies the Indemnitee in writing of the Indemnitor’s willingness to accept the settlement offer and pay the amount called for by assuming such offer without reservation of any rights or defenses against the defense Indemnitee and if the Indemnitee fails to consent to such settlement offer within ten calendar days after its receipt of such notice, Indemnitee may continue to contest such claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with respect to such Third Party ClaimClaim that the Indemnitor has an obligation to pay hereunder shall be limited to the lesser of (x) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer or (y) the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense shall keep the other party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider in good faith all reasonable recommendations made by the other party with respect thereto.
Appears in 1 contract
Third Party Claims. (a) If a Parent Indemnitee becomes aware of a third-party claim that such Parent Indemnitee believes, in good faith, may result in a demand by it for indemnification pursuant to this Article VIII, such Parent Indemnitee shall promptly notify the Holder Representative in writing of such claim, setting forth such claims in reasonable detail. The Indemnified Indemnifying Party agrees shall have, at its election pursuant to give the terms of this Section 8.5, the right to undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnitee shall cooperate with it in connection therewith; provided, that the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All action only to the extent (i) such claim would not reasonably be expected to give rise to Losses incurred by that are more than the Indemnified Party prior amount of the funds then remaining in the Escrow Account (when taking into account any other claims on the funds in the Escrow Account) or (ii) the claim does not seek, as a substantial component of such claim, an injunction or equitable relief against the Indemnitee; and provided further, that, if it elects to any assumption by assume control of such claim, the Indemnifying Party shall be entitled to continue to maintain control of that claim so long as it conducts the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify claim actively and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claimdiligently. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed assumes control of the defense of a Third Party Claimsuch claim, the Indemnified Party will have the right, but not the obligation, to Indemnitee may participate in the such settlement or defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, through counsel chosen by such Indemnitee and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense paid at its own expense unless (A) expense; provided that, if in the reasonable opinion of counsel for such Indemnitee, there is a reasonable likelihood of a conflict of interest between the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental EntityIndemnitee, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) shall be responsible for the Indemnified Party assumes the defense reasonable fees and expenses of a Third Party Claim after the Indemnifying Party has failed one counsel to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party Indemnitee in connection with such participation will be borne by defense. So long as the Indemnifying Party is reasonably contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim without the consent of the Indemnifying Party. Each If the Indemnifying Party will reasonably cooperate in does not notify the Indemnitee within 10 days after receipt of the Indemnitee’s notice of a claim of indemnity hereunder that it elects to undertake the defense thereof (or prosecution the Indemnifying Party is otherwise unable to assume control of a Third Party Claim. Such cooperation will include the retention anddefense pursuant to the terms of this Section 8.5), upon the Indemnitee shall have the right to undertake, at the Indemnifying Party's request’s cost, risk and expense, the provision defense, compromise or settlement of the claim, but shall not thereby waive any right to indemnity therefore pursuant to this Agreement and shall not enter into any settlement without consent of the Indemnifying Party, which shall not be unreasonably withheld with respect to settlements comprising of only monetary relief. The Indemnifying Party shall not, except with the consent of records and information which are reasonably relevant the Indemnitee, enter into any settlement that (a) does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnitees of an unconditional release from all Liability with respect to such Third Party Claim, and making employees available on a mutually convenient basis claim or consent to provide additional information and explanation entry of any material provided hereunderjudgment and (b) involves non-monetary relief or remedy, including any restrictions on the Indemnitee’s ability to operate or compete.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees Except as specifically provided for in this Section 9.7, the Indemnitee shall be entitled to give conduct and control the Indemnifying Party notice in writing of the assertion defense of any claim brought or demand made by, or any other Action instituted by, initiated by any Person who is not a Party party to this Agreement for which such Indemnitee is seeking indemnification pursuant to this Article IX (a “Third Party Claim”) ). The Indemnitee shall permit the Indemnitor to participate in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result defense of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes through counsel chosen by the Indemnitor, but the fees and expenses of such counsel shall be borne by the procedures Indemnitor.
(b) Subject to the terms and conditions set forth in this Section 7.39.7, it being the intent of the parties that Seller will assume Indemnitor may elect to conduct and control the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will The Indemnitor shall have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from 20 Business Days after receipt of the Indemnification a Claim Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Indemnitee that it is electing to assume conduct and control the defense of such Third Party Claim. All Losses incurred by If the Indemnitor does not give the foregoing notice, the Indemnitee shall have the right to conduct and control the defense of the Third Party Claim in the same manner and on the same basis as set forth in Section 9.7(a) (without prejudice to the Indemnitee’s right to seek indemnification pursuant to this Article IX). If the Indemnitor gives the foregoing notice:
(i) The Indemnitor shall have the right, at its sole expense, to conduct and control the defense of such Third Party Claim with counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate with the Indemnitor in connection therewith and make reasonably available to the Indemnitor all witnesses, pertinent records, materials and information in the Indemnitee’s direct or indirect possession or under the Indemnified Party prior to any assumption Party’s control relating thereto as is reasonably required by the Indemnifying Party;
(ii) The Indemnitor shall permit the Indemnitee to participate in such conduct or settlement of such Third Party Claim through counsel chosen by the Indemnitee, and the fees and expenses of such counsel shall be borne by the Indemnitee;
(iii) The Indemnitor shall not compromise or settle any such Third Party Claim without the consent of the Indemnitee (which consent shall not be unreasonably withheld or delayed); and
(iv) If the Indemnitor does not diligently conduct the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right Indemnitee may elect to so defend at its expense, with counsel selected by re-assume the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed conduct and control of the defense of a such Third Party ClaimClaim at the expense of the Indemnitor; provided, however, that the Indemnitee shall not compromise or settle any such Third Party Claim without the consent of the Indemnitor (which consent shall not be unreasonably withheld or delayed).
(c) Notwithstanding the foregoing, if the Indemnitor is a ▇▇▇▇ Party, the Indemnified Party will Indemnitor shall have the right, but not the obligation, no right to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, conduct and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes control the defense of a any Third Party Claim after that (i) seeks an injunction or other equitable relief against the Indemnifying Party has failed Indemnitee, (ii) involves criminal allegations against a Purchaser Group Member, (iii) involves monetary liability exceeding the Cap, or (iv) would reasonably be expected to diligently pursue a materially and adversely affect the business or reputation of Purchaser. In any Third Party Claim it has assumed, and described in the case of (A) or (B)foregoing sentence, all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records Indemnitee shall conduct and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct control the defense of such Third Party Claim in a reasonably diligent the same manner within twenty and on the same basis as set forth in Section 9.7(a) (20) days after receiving written notice from the Indemnified Party without prejudice to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's Indemnitee’s right to seek indemnification for such pursuant to this Article IX).
(d) The parties shall act in good faith and reasonably cooperate with each other in responding to, defending against, settling or otherwise dealing with all Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimClaims for which indemnification is sought, notwithstanding any dispute as to liability under this Article IX.
Appears in 1 contract
Third Party Claims. (a) The In order for an Indemnified Party agrees to give the Indemnifying Party notice be entitled to any indemnification provided for under this Agreement in writing respect of, arising out of the assertion of any or involving a claim or demand made byby any third-party against an Indemnified Party, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to must notify the Indemnifying PartyIndemnitor in writing, and in reasonable detail, of the third-party claim within ten (10) Business Days after receipt by such Indemnified Party of written notice of the third-party claim; provided, however, that the failure to provide timely notice shall not relieve the Indemnitor for liability therefore except to the extent that the Indemnitor is prejudiced thereby. Thereafter, the Indemnified Party shall deliver to the Indemnitor, as promptly as reasonably practicable after the Indemnified Party's ’s receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third third-party claim. Notwithstanding the foregoing, should an Indemnified Party Claim. Any CIE Claim shall be considered physically served with a Third complaint with regard to a third-party claim, the Indemnified Party Claim for purposes must notify the Indemnitor and deliver a copy of the procedures set forth in this Section 7.3, it being complaint within ten (10) Business Days after receipt thereof and shall deliver to the intent Indemnitor within fifteen (15) Business Days after the receipt of such complaint copies of notices and documents (including court papers) received by the parties that Seller will assume Indemnified Party relating to the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)third-party claim.
(b) (i) With respect to a Third Party ClaimIn the event of the initiation of any legal proceeding, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect claim or demand against the Indemnified Party and/or by a third-party, the Indemnified Party's Affiliates other than as a result Indemnitor shall have the sole and absolute right after the receipt of monetary damages. Unless notice, at its option and at its own expense, to be represented by counsel of its choice and to control, defend against, negotiate, settle or otherwise deal with any proceeding, claim, or demand which relates to any Damages indemnified against hereunder; provided, however, that the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense proceeding with counsel of its choice and at its own expense unless the named Parties to any such proceeding (Aincluding any impleaded Parties) include both the Indemnifying Party Indemnitor and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties Parties by the same counsel would be inappropriate due to actual or potential differing conflicts of interests between them or them. It is understood that the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party Indemnitor shall not, in respect thereof or (B) of the Indemnified Party assumes the defense legal expenses of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the any Indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate identified firm (in addition to any identified local counsel) for all such participation will Indemnified Parties and that all such fees and expenses shall be borne reimbursed as they are incurred, such firm to designated in writing by the Indemnifying Indemnified Party. Each Party will reasonably The Parties hereto agree to cooperate fully with each other in connection with the defense defense, negotiation or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation settlement of any material provided hereunder.
(ii) In such legal proceeding, claim or demand. To the event extent the Indemnifying Party (x) Indemnitor elects not to defend such proceeding, claim or demand, and the Indemnified Party defends against a Third Party Claimor otherwise deals with any such proceeding, whether by not giving claim or demand, the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend may retain counsel, at the Third Party Claim as a result expense of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party ClaimIndemnitor, fails to conduct and control the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from proceeding. Neither the Indemnitor nor the Indemnified Party may settle any such proceeding which settlement obligates the other Party to pay money, to perform obligations, to refrain from any action, or to admit liability without the effect that consent of the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified other Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
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Sources: Sponsorship and Program Management Agreement (GBank Financial Holdings Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing obligations and liabilities of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the ------------------ parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice hereunder with respect to a Third Party Claim shall be subject to the following terms and conditions:
(a) The Indemnitee shall give the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense Indemnitor Representative written notice of a Third Party Claim will be reimbursed promptly after receipt by the Indemnifying Party Indemnitee of notice thereof, and the Indemnitor Representative, on behalf of the Indemnitors, may undertake the defense, compromise and settlement thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify the Indemnitor Representative of such claim -52- shall not relieve the Indemnitors of any liability that they may have with respect to such claim except to the extent the Indemnifying Party Indemnitor Representative demonstrates that the defense of such claim is required to indemnify prejudiced by such failure. The assumption of the defense, compromise and hold harmless the Indemnified Party from, against and in respect settlement of Losses incurred or suffered by the Indemnified Party to the extent arising from any such Third Party ClaimClaim by the Indemnitor Representative shall be an acknowledgment of the obligation of the Indemnitors to indemnify the Indemnitee with respect to such claim hereunder. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects Indemnitee desires to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the rightparticipate in, but not the obligationcontrol, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense defense, compromise and settlement, it may do so at its own expense unless (A) the Indemnifying Party sole cost and the Indemnified Party are both named parties to the proceedings and a Governmental Entityexpense. If, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's requesthowever, the provision Indemnitor Representative fails or refuses to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct undertake the defense of such Third Party Claim in a reasonably diligent manner within twenty ten (2010) days after receiving written notice from the Indemnified Party of such claim has been given to the effect that Indemnitor Representative by the Indemnifying Party has so failedIndemnitee, the Indemnified Party will Indemnitee shall have the right but not to undertake the obligation to assume defense, compromise and settlement of such claim with counsel of its own defense; it being understood choosing. In the circumstances described in the preceding sentence, the Indemnitee shall, promptly upon its assumption of the defense of such claim, make an Indemnification Claim as specified in Section 10.2 which shall be deemed an Indemnification Claim that is not a Third Party Claim for the Indemnified Party's purposes of the procedures set forth herein.
(b) If, in the reasonable opinion of the Indemnitee, any Third Party Claim or the litigation or resolution thereof involves an issue or matter which could have a material adverse effect on the business, operations, assets, properties or prospects of the Indemnitee (including, without limitation, the administration of the tax returns and responsibilities under the tax laws of the Indemnitee), the Indemnitee shall have the right to indemnification for control the defense, compromise and settlement of such Third Party Claim will undertaken by the Indemnitor Representative, and the costs and expenses of the Indemnitee in connection therewith shall be included as part of the indemnification obligations of the Indemnitors hereunder. If the Indemnitee shall elect to exercise such right, the Indemnitor Representative shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(c) No settlement of a Third Party Claim involving the asserted liability of the Indemnitors under this Article shall be made without the prior written consent by or on behalf of the Indemnitor Representative, which consent shall not be adversely affected by assuming unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $20,000 or less where the Indemnitor Representative has not responded within five business days of notice of a proposed settlement. If the Indemnitor Representative assumes the defense of such a Third Party Claim, (a) no compromise or settlement thereof may be effected by the Indemnitor Representative without the Indemnitee's consent unless (i) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against the Indemnitee, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitors, and (iii) the compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnitee of a release, in form and substance satisfactory to the Indemnitee, from all liability in respect of such Third Party Claim, and (b) the Indemnitee shall have no liability with respect to any compromise or settlement thereof effected without its consent.
(d) In connection with the defense, compromise or settlement of any Third Party Claim, the parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by any party hereto and, as may reasonably be related to any such claim or action, shall provide access to the counsel, accountants and other representatives of each party during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such other party and will furnish to such other party copies of all such documents as may reasonably be requested (certified, if requested).
Appears in 1 contract
Third Party Claims. In the event that a party claiming a right of indemnification hereunder (aeach an "Indemnitee") The Indemnified Party agrees desires to give make a claim against any other party or parties (the Indemnifying Party notice "Indemnitor") in writing of the assertion of connection with any claim action, suit, proceeding or demand at any time instituted against or made by, or upon the Indemnitee by any other Action instituted by, any Person not a Party to this Agreement third party for which the Indemnitee may seek indemnification hereunder (a “"Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim"), the Indemnified Party will deliver to Indemnitee shall promptly notify Indemnitor (or, if the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes Indemnitor is one or more of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Indemnifying Parties, the Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(bRepresentatives) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless of such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence Indemnitee's claim of the condition set forth in the preceding sentence, the Indemnifying Party will indemnification with respect thereto. The Indemnitor shall have thirty forty-five (3045) days after receipt of such notice (or by such lesser number of days set forth in the Indemnification Notice earlier date as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect necessary under applicable procedural rules in order to file a Third Party Claim (the “Defense Notice Period”timely appearance and response) to notify the Indemnified Party of its election Indemnitee if the Indemnitor has elected to assume the defense of such Third Party Claim. All Losses incurred by ; provided that Indemnitor shall not be entitled to assume the Indemnified defense of any Third Party prior Claim (but, the Indemnitor may participate in the defense of such Third Party Claim with its own counsel at its own expense) for which the Indemnitee is conducting such defense actively and diligently unless and until the aggregate amount of all Damages for claims subject to any assumption by the Indemnifying Party of Deductible Amount exceeds the Deductible Amount; and provided further that for so long as Indemnitor is not entitled to assume the defense of a Third Party Claim will be reimbursed by arising under Section 13.1(a)(iii) or 13.1(a)(v) and Indemnitee maintains control over the Indemnifying defense of such claims, Indemnitee shall not (a) settle any Third Party Claim arising under Section 13.1(a)(iii) or consent to the extent the Indemnifying entry of judgment or take any remedial action with respect thereto unless such settlement, consent or action is made or taken on commercially reasonable terms or (b) settle any Third Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred Claim arising under Section 13.1(a)(v) or suffered by the Indemnified Party consent to the extent arising from such Third Party Claimentry of judgment with respect thereto in an amount in excess of $50,000 without the Indemnitor's prior written consent (which consent shall not be unreasonably withheld or delayed). If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it Indemnitor elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct assume the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party pursuant to the effect that the Indemnifying Party has so failedterms hereof, the Indemnified Party will have the right but not the obligation to assume Indemnitor shall be entitled at its own defense; it being understood that expense to conduct and control the Indemnified Party's right to indemnification for defense and settlement of such Third Party Claim will not be adversely affected by assuming through counsel of its own choosing; provided that (a) the Indemnitor shall conduct such defense actively and diligently, (b) the Indemnitee may participate in the defense of such Third Party ClaimClaim with its own counsel at its own expense and (c) the Indemnitor may not settle any Third Party Claim or consent to the entry of judgment with respect thereto without the Indemnitee's prior written consent (which consent shall not be unreasonably withheld or delayed); provided further, that in the event that the Indemnitee withholds its consent to any settlement of, or entry of judgment with respect to, a Third Party Claim (other than a Third Party Claim involving a claim for equitable relief against the Company or any of its Subsidiaries), (i) the Indemnitor's maximum liability under this Section 13 with respect to such Third Party Claim shall be limited to the amount that would be payable by the Indemnitor under this Section 13 if such settlement had been entered into or such judgment had been entered and (ii) the Indemnitee shall thereafter assume the defense of such Third Party Claim at its own expense and shall conduct such defense actively and diligently (and the Indemnitor may participate in such defense with its own counsel at its own expense). If the Indemnitor fails to notify the Indemnitee as required above after receipt of the Indemnitee's notice of a Third Party Claim or fails to conduct the defense as required above, the Indemnitee shall be entitled to assume the defense of such Third Party Claim at the expense of the Indemnitor, provided that the Indemnitee may not settle any Third Party Claim without the consent (which consent shall not be unreasonably withheld or delayed) of the Indemnitor.
Appears in 1 contract
Third Party Claims. If either party, including its distributors, affiliates or their respective officers, directors, employees, servants or agents (a) The Indemnified Party agrees in each case an “Indemnitee”), receives any written Claim which such Indemnitee believes is the subject of indemnity hereunder by the other party hereto (an “Indemnitor”), the Indemnitee shall promptly give notice thereof to the Indemnitor, provided that the failure to give timely notice to the Indemnifying Party notice Indemnitor as contemplated hereby shall not release the Indemnitor from any liability to the Indemnitee unless the Indemnitor demonstrates that the defense of such Claim is prejudiced by such failure (and, in writing the event of such late notice, the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with Indemnitor is only responsible for costs incurred after the notice procedures set forth is provided and the Indemnitee is responsible for any increase in Section 7.2; providedcosts related to its late notice). The Indemnitor shall have the right, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except by prompt notice to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimIndemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party ClaimClaim at its cost, with counsel reasonably satisfactory to the Indemnitee. All Losses incurred by If the Indemnified Party prior to any assumption by the Indemnifying Party of Indemnitor does not so assume the defense of a Third Party such Claim will be reimbursed by or, having done so, does not diligently pursue such defense, the Indemnifying Party to Indemnitee may assume the extent defense, with counsel of its choice, but at the Indemnifying Party is required to indemnify and hold harmless cost of the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party ClaimIndemnitor. If the Indemnifying Party notifies Indemnitor so assumes the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claimdefense, it will shall have absolute control of the right to so defend litigation; the Indemnitee may, nevertheless, participate therein through counsel of its choice and at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Partycost. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects party not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claimany such Claim shall render all reasonable assistance to the party assuming such defense, fails to conduct the defense with all reasonable pre-approved out-of-pocket costs of such Third Party assistance (which shall not include any costs of time spent) for the account of the Indemnitor. No such Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from shall be settled other than by the Indemnified Party to party defending the effect same, and then only with the consent of the other party, which consent shall not be unreasonably withheld; provided that the Indemnifying Party has so failed, the Indemnified Party will Indemnitee shall have the right but not the no obligation to assume its own defense; it being understood that consent to any settlement of any such Claim which imposes on the Indemnified Party's right to indemnification for such Third Party Claim will Indemnitee any liability or obligation which cannot be adversely affected assumed or performed in full by assuming the defense of such Third Party ClaimIndemnitor.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party Promptly after receipt by an Indemnitee of written notice in writing of the assertion or the commencement of any claim or demand made by, or any other Action instituted by, any Person not Litigation by a Party third party for which the Indemnitee is entitled to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought indemnification from the Indemnitor under Section 7.1 in accordance 10.1 or Section 10.2, the Indemnitee shall provide a Notice of Claim to the Indemnitor, and thereafter shall keep the Indemnitor reasonably informed with the notice procedures set forth in Section 7.2respect thereto; provided, however, that any delay in delivering any Indemnification Notice will failure of the Indemnitee to give the Indemnitor notice as provided herein shall not affect relieve the indemnification provided hereunder, Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party will have been Indemnitor is materially prejudiced as thereby. In case any Litigation shall be commenced against any Indemnitee by a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimthird party, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in such Litigation and, at its option, assume the defense thereof andwith counsel reasonably satisfactory to the Indemnitee, if it so electsat the Indemnitor's sole expense, to assume provided, however, that the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect Indemnitor shall not have the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election right to assume the defense of any Litigation if (i) the Indemnitee shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such Third Party Claim. All Losses incurred by interests could be in conflict with those of the Indemnified Party prior Indemnitor, (ii) such Litigation is reasonably likely to have an adverse effect on any assumption by other matter beyond the Indemnifying Party scope or limits of the indemnification obligation of the Indemnitor, or (iii) the Indemnitor shall not have assumed the defense of the Litigation in a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and timely fashion (but in respect any event within thirty days of Losses incurred or suffered by the Indemnified Party to the extent arising from notice of such Third Party ClaimLitigation). If the Indemnifying Party notifies Indemnitor shall assume the Indemnified Party within defense of any Litigation, the Defense Notice Period that it elects Indemnitee shall be entitled to defend such Third Party Claim, it will have the right to so defend participate in any Litigation at its expense, with counsel selected and the Indemnitor shall not settle such Litigation unless the settlement shall include as an unconditional term thereof the giving by the Indemnifying Party that is reasonably acceptable claimant or the plaintiff of a full and unconditional release of the Indemnitee from all liability with respect to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claimmatters that are subject to such Litigation, the Indemnified Party will or otherwise shall have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed been approved by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderIndemnitee.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party Promptly after receipt by an Indemnitee of written notice in writing of the assertion or the commencement of any claim or demand made by, or any other Action instituted by, any Person not Litigation by a Party third party for which the Indemnitee is entitled to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought indemnification from the Indemnitor under Section 7.1 in accordance or Section 10.2, the Indemnitee shall provide a Notice of Claim to the Indemnitor, and thereafter shall keep the Indemnitor reasonably informed with the notice procedures set forth in Section 7.2respect thereto; provided, however, that any delay in delivering any Indemnification Notice will failure of the Indemnitee to give the Indemnitor notice as provided herein shall not affect relieve the indemnification provided hereunder, Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party will have been Indemnitor is materially prejudiced as thereby. In case any Litigation shall be commenced against any Indemnitee by a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimthird party, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in such Litigation and, at its option, assume the defense thereof andwith counsel reasonably satisfactory to the Indemnitee, if it so electsat the Indemnitor’s sole expense, to assume provided, however, that the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect Indemnitor shall not have the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election right to assume the defense of any Litigation if (i) the Indemnitee shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such Third Party Claim. All Losses incurred by interests could be in conflict with those of the Indemnified Party prior Indemnitor, (ii) such Litigation is reasonably likely to have an adverse effect on any assumption by other matter beyond the Indemnifying Party scope or limits of the indemnification obligation of the Indemnitor, or (iii) the Indemnitor shall not have assumed the defense of the Litigation in a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and timely fashion (but in respect any event within thirty days of Losses incurred or suffered by the Indemnified Party to the extent arising from notice of such Third Party ClaimLitigation). If the Indemnifying Party notifies Indemnitor shall assume the Indemnified Party within defense of any Litigation, the Defense Notice Period that it elects Indemnitee shall be entitled to defend such Third Party Claim, it will have the right to so defend participate in any Litigation at its expense, with counsel selected and the Indemnitor shall not settle such Litigation unless the settlement shall include as an unconditional term thereof the giving by the Indemnifying Party that is reasonably acceptable claimant or the plaintiff of a full and unconditional release of the Indemnitee from all liability with respect to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claimmatters that are subject to such Litigation, the Indemnified Party will or otherwise shall have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed been approved by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderIndemnitee.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Merger Agreement (Receivable Acquisition & Management Corp)
Third Party Claims. In the event that a party (athe "INDEMNITEE") The Indemnified Party agrees desires to give make a claim against another party (the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”"INDEMNITOR") in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii5.2 or Section 5.3 in connection with any action, suit, proceeding or demand at any time instituted against or made upon the Indemnitee by any third party for which the Indemnitee may seek indemnification hereunder (a "THIRD PARTY CLAIM").
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate Indemnitee shall promptly notify, in writing, the defense thereof and, if it so elects, to assume the defense thereof, unless Indemnitor of such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence Indemnitee's claim of the condition set forth in the preceding sentence, the Indemnifying Party will indemnification with respect thereto. The Indemnitor shall have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from after receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) such notice to notify the Indemnified Party of its election Indemnitee if he/she or it has elected to assume the defense of such Third Party Claim. All Losses incurred by If the Indemnified Party prior Indemnitor elects to any assumption by the Indemnifying Party of assume the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right Indemnitor shall be entitled at his/her or its own expense to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed conduct and control the defense and settlement of such Third Party Claim through counsel of his/her or its own choosing; PROVIDED, HOWEVER, that the Indemnitee may participate in the defense of such Third Party Claim with his/her or its own counsel at his/her or its own expense and the Indemnitor may not settle any Third Party Claim without the Indemnitee's consent, which shall not be unreasonably withheld. If the Indemnitor fails to notify the Indemnitee within thirty (30) days after receipt of the Indemnitee's written notice of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would Indemnitee shall be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct assume the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from at the Indemnified Party to expense of the effect Indemnitor; PROVIDED, HOWEVER, that the Indemnifying Party has so failed, the Indemnified Party will have the right but Indemnitee may not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such settle any Third Party Claim will without the Indemnitor's consent, which shall not be adversely affected by assuming the defense of such Third Party Claimunreasonably withheld.
Appears in 1 contract
Third Party Claims. (a) The Promptly after receipt (and in any event within 20 days) by an Indemnified Party agrees to give the Indemnifying Party Person of notice in writing of the assertion commencement of any third party claim or which such Indemnified Person reasonably believes may result in a demand for indemnification against it, such Indemnified Person will, if a claim is to be made byagainst a Participating DMG Shareholder for indemnification hereunder, or any other Action instituted bygive notice to the Shareholder Representative of the commencement of such claim, any Person not a Party but the failure to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with notify the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice Shareholder Representative will not affect relieve the indemnification provided hereunderParticipating DMG Shareholder of any liability that they may have to any Indemnified Person, except to the extent that the Indemnifying Party will have been materially prejudiced as a result Participating DMG Shareholders demonstrate that the defense of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received action is prejudiced by the Indemnified Party relating Person’s failure to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in give such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)notice.
(b) (i) With respect If any third-party claim is brought against an Indemnified Person and it gives notice to a Third Party Claimthe Shareholder Representative of the commencement of such third-party claim, the Indemnifying Party Shareholder Representative will be entitled to participate in the defense thereof such Action and, if it so electsto the extent that they wish (unless the Shareholder Representative or Participating DMG Shareholder is also a party to such Action and the Indemnified Person determines in good faith that joint representation would be inappropriate due to a bona fide conflict of interest), to assume the defense thereof, unless of such Third Party Claim is Action with counsel reasonably likely satisfactory to materially and adversely affect the Indemnified Party and/or Person and, after notice from the Shareholder Representative to the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party Person of its election to assume the defense of such Third Party Claim. All Losses Action, the Participating DMG Shareholders will not, as long as the Shareholder Representative reasonably diligently conducts such defense, be liable to the Indemnified Person under this Section 7.6(b) for any fees of other counsel or any other expenses with respect to the defense of such Action, in each case subsequently incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of Person in connection with the defense of such Action. If it is determined that joint representation is inappropriate due to a Third Party Claim will be reimbursed by bona fide conflict of interest, then the Indemnifying Party to the extent the Indemnifying Party is required to indemnify Participating DMG Shareholders shall pay all reasonable costs and hold harmless expenses of one separate counsel for the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party ClaimPerson. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party Shareholder Representative assumes the defense of a Third Party Claim an Action, (i) no compromise or settlement of such claims may be effected by the Shareholder Representative without the Indemnified Person’s consent (not to be unreasonably withheld, conditioned or delayed). If notice is given to the Shareholder Representative of any third party Action and the Shareholder Representative does not, within ten (10) days after the Indemnifying Party has failed Indemnified Person’s notice is given, give notice to diligently pursue the Indemnified Person of its election to assume the defense of such Action, the Indemnified Person shall control the defense of such Action; provided, however, the Participating DMG Shareholders shall not be bound by any determination of a Third Party Claim it has assumed, and in the case of (A) claim so defended or (B), all such expenses incurred any compromise or settlement effected by the Indemnified Party Person without the consent of the Shareholder Representative (which may not be unreasonably withheld, conditioned or delayed).
(c) Notwithstanding the foregoing, if any claim that questions or challenges the adequacy of the Merger Consideration (including in respect of appraisal rights, if any, available to any dissenting shareholders of the Company in connection with the Merger) is brought against an Indemnified Person, VisionChina may by notice to the Shareholder Representative, assume the exclusive right to defend, compromise, or settle such participation Action, but the Participating DMG Shareholders will not be borne bound by any determination of a claim so defended or any compromise or settlement effected by the Indemnifying PartyIndemnified Person without the consent of the Shareholder Representative (which may not be unreasonably withheld, conditioned or delayed). Each Party will reasonably cooperate in the defense In defending, compromising or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's requestsettling such Action, the provision Indemnified Person shall be entitled to cause the Indemnifying Party Escrow Agent to disburse to VisionChina or its designees up to US$2,000,000 of records and information which are reasonably relevant to the Indemnity Escrow Fund solely for the purpose of litigating (but not settling) such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderAction.
(iid) In Notwithstanding the event the Indemnifying Party (x) elects not to defend the foregoing, if an Indemnified Party against Person determines in good faith that there is a Third Party Claim, whether by not giving the Indemnified Party timely notice of reasonable probability that an Action may adversely affect it or its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim Affiliates other than as a result of the Indemnified Party's election monetary damages for which it would be entitled to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failedindemnification under this Agreement, the Indemnified Party will have Person may, by notice to the right but not Shareholder Representative, assume the obligation to assume its own defense; it being understood that the Indemnified Party's exclusive right to indemnification for defend, compromise, or settle such Third Party Claim Action, but the Participating DMG Shareholders will not be adversely affected bound by assuming any determination of a claim so defended or any compromise or settlement effected by the defense Indemnified Person without the consent of such Third Party Claimthe Shareholder Representative (which may not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Visionchina Media Inc.)
Third Party Claims. (a) The Indemnified Party agrees Subject to give subclause (b) below, in the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not event that a Party party seeking indemnity pursuant to this Agreement ("Indemnitee") shall become aware of a “third-party claim with respect to any matter as to which the other party ("Indemnitor") has agreed to indemnify Indemnitee under the provisions of this Agreement (a "Third Party Claim”) "), Indemnitee shall give notice thereof in writing to Indemnitor together, in each instance, with a statement of such information respecting such Third Party Claim as Indemnitee shall then have. Indemnitor reserves the right to contest and defend by all appropriate legal or other proceedings any Third Party Claim with respect to which it has been called upon to indemnify Indemnitee under the provisions of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2this Agreement; provided, however, that any delay in delivering any Indemnification Notice will not affect notice of the indemnification provided hereunder, except intention so to contest shall be delivered to Indemnitee within twenty (20) calendar days from the extent the Indemnifying Party will have been materially prejudiced as a result date of such delay. From and after the delivery receipt by Indemnitor of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies notice of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim If Indemnitor assumes such defense, Indemnitee shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the rightparticipate in, but not the obligationcontrol, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, thereof and to employ counsel counsel, at its own expense, separate from the counsel employed by Indemnitor. If Indemnitor shall have assumed the Indemnifying Partydefense of any claim, Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such claim without Indemnitor's prior written consent. The Indemnified If Indemnitor has not so assumed the defense of and Indemnitee settles, compromises or discharges any claim without Indemnitor's consent, such settlements, compromise of discharge shall not be conclusive as to the amount of Indemnitee's Losses, if any, with respect to such claim.
(b) In the event Parent becomes aware of a Third-Party will Claim in an amount exceeding the amount then held in the Escrow Fund which Parent believes is reasonably likely to result in a demand in excess of the Escrow Fund, Parent shall notify the Stockholder Representatives of such claim, and the Stockholder Representatives shall be entitled, at its expense, to participate in any defense of such defense at claim. Parent shall have the right in its own expense unless (A) sole discretion to settle any such claim; PROVIDED, HOWEVER, that except with the Indemnifying Party and consent of the Indemnified Party are both named parties Stockholder Representative, no settlement of any such claim with third-party claimants shall be determinative of the amount of any claim against the Escrow Fund. In the event that the Stockholder Representative has consented to any such settlement, the Stockholders shall have no power or authority to object under any provision of this Article VII to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, amount of any claim by Parent against the Escrow Fund with jurisdiction over respect to such settlement; provided that in no event shall any such claim expose the proceedings at issue will Stockholders to liability in excess of the Escrow Fund.
(c) If the Stockholders Representatives shall have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes assumed the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a any Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision Stockholders Representatives shall notify the Company and the Escrow Agent in writing of the amount of cash that is reasonably expected to be necessary for the Indemnifying Party management and resolution of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis specifying in reasonable detail the individual items included in the amount. Unless the Company objects to provide additional information and explanation such amount within 5 days of any material provided hereunder.
(ii) In receiving such notice, the event Escrow Agent shall deliver to the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result Stockholders Representatives out of the Indemnified Party's election to defend Escrow Fund, as promptly as practicable, shares of Parent Common Stock held in the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of Escrow Fund with a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party value equal to the effect that amount requested in the Indemnifying Party has so failednotice. If the Company objects to the requested amount, the Indemnified Party will have Company and the right but not Stockholders Representatives shall negotiate in good faith to resolve such dispute and after such dispute is resolved, the obligation Escrow Agent shall deliver to assume its own defense; it being understood that the Indemnified Party's right Stockholders Representatives out of the Escrow Fund, as promptly as practicable, shares of Parent Common Stock held in the Escrow Fund with a value equal to indemnification for such Third Party Claim will not the amount requested in the notice. For purposes of determining the number of shares of Parent Common Stock to be adversely affected by assuming delivered to Parent out of the defense Escrow Fund pursuant to this Section 7.5(c), the shares of such Third Party ClaimParent Common Stock shall be valued at the Closing Price, which the parties shall certify to the Escrow Agent in writing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Probusiness Services Inc)
Third Party Claims. If any Person entitled to indemnification under this Agreement (aan "INDEMNITEE") The Indemnified Party agrees to give the Indemnifying Party receives notice in writing of the assertion commencement of any judicial, administrative, arbitration, or investigatory proceeding or other proceeding, claim or demand made bycontroversy (collectively, or any other Action instituted by, a "PROCEEDING") by any Person who is not a Party party to this Agreement (a “Third Party Claim”"THIRD PARTY CLAIM") in respect against such Indemnitee for which a party is obligated to provide indemnification under this Agreement (an "INDEMNITOR"), the Indemnitee will give such Indemnitor prompt written notice thereof (the "THIRD PARTY CLAIM NOTICE"), but the failure to so notify Indemnitor shall not relieve Indemnitor of which its indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice obligations with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect unless the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume Indemnitor establishes that the defense of such Third Party Claim. All Losses incurred Claim is actually prejudiced by the Indemnified Party prior Indemnitee's failure to any assumption by the Indemnifying Party of the defense of a give such notice, in which case such claim shall be barred. The Third Party Claim Notice will describe the Third Party Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of the Losses that have been or may be reimbursed sustained by the Indemnifying Party to Indemnitee. Except as otherwise set forth in this Section 8.3, the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it Indemnitor will have the right to so defend assume the defense of any Third Party Claim at its expense, the Indemnitor's own expense and with counsel selected by the Indemnifying Party that is Indemnitor (which counsel shall be reasonably acceptable satisfactory to the Indemnified PartyIndemnitee) by giving to the Indemnitee notice (the "ASSUMPTION NOTICE") no later than thirty (30) calendar days after receipt of the Third Party Claim Notice. Once The Indemnitor shall not be entitled to assume the Indemnifying defense of, and the Indemnitee shall be entitled to have sole control over, the defense or settlement of any Third Party has duly assumed Claim (with counsel reasonably satisfactory to Indemnitor) to the extent that such claim seeks an order, injunction or other equitable relief against the Indemnitee which, if successful, would be reasonably likely to materially interfere with the business, operations, assets, or financial condition of the Indemnitee. In the event the Indemnitor assumes the defense of a Third Party Claim, the Indemnified Party Indemnitee will cooperate in good faith with the Indemnitor in such defense and will have the right, but not the obligation, right to participate in the defense thereof, including the opportunity to participate in of any discussions or correspondence with any Governmental Entity, Third Party Claim assisted by counsel of its own choosing and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) expense. Notwithstanding the Indemnifying Party and foregoing, if the Indemnified Party are both named parties to the proceedings Third Party Claim (including any impleaded parties) include both the Indemnitor and a Governmental Entity, arbitrator the Indemnitee or arbitration panel, as applicable, with jurisdiction over if the proceedings at issue will have determined Indemnitor proposes that the same counsel represent both the Indemnitee and the Indemnitor and the Indemnitee in good faith determines that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them them, then the Indemnitee shall have the right to retain its own counsel at the cost and expense of the Indemnitor. If the Indemnitee does not receive the Assumption Notice within the thirty (30) calendar day period set forth above or if the availability Indemnitor is not entitled to assume the Indemnified defense of the Third Party Claim, the Indemnitee shall have sole control over the defense and settlement of one the Third Party Claim, and the Indemnitor will be liable as provided in Section 8.1 for all Losses paid or more defenses incurred in connection therewith. If the Indemnitor assumes the defense of the Third Party Claim, the Indemnitor shall not compromise or counterclaims that are inconsistent with one settle such claim without the Indemnitee's consent unless (i) there is no finding or more admission of those any violation of legal requirements or any violation of the rights of any person and no effect on any other claims that may be available to made against the Indemnifying Party Indemnitee, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor and (iii) the settlement includes as an unconditional term a complete release of each Indemnitee from all liability in respect thereof or (B) the Indemnified Party of such claim. Each Indemnitor who assumes the defense of a Third Party Claim after the Indemnifying Party has failed shall use reasonable efforts to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all defend such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderclaim.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Partnership Interest Purchase and Sale Agreement (Northern Border Partners Lp)
Third Party Claims. (a) The Indemnified Party agrees Any party (the "Aggrieved") may assert a right of indemnification against any other party (the "Indemnitor") in connection with any action, suit, proceeding, demand or claim at any time instituted against or made upon the Aggrieved which may result in Losses to the Aggrieved (a "Claim"). In such event, the Aggrieved shall notify the Indemnitor of such Claim and of the Aggrieved's claim of indemnification with respect thereto, provided that failure of the Aggrieved to give such notice shall not relieve the Indemnifying Party notice in writing Indemnitor of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to its obligations under this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunderAgreement, except to the extent extent, if at all, that the Indemnifying Party will Indemnitor shall have been materially prejudiced as a result by such failure to give notice. Upon receipt of such delay. From and after notice from the delivery of a Indemnification Notice with respect to a Third Party ClaimAggrieved, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, of such Claim.
(b) If and only if the Indemnitor confirms in writing that it so elects, to assume shall indemnify the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice Aggrieved with respect to such Claim and posts a Third Party Claim (bond, insurance policy or other adequate security for the “Defense Notice Period”) to notify amount of such Claim, the Indemnified Party of its election to Indemnitor may assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of such an assumption the Indemnitor shall have the authority to negotiate, compromise and settle such Claim for the Aggrieved; provided, however, that the Indemnitor may not assume the defense of any Claim which demands equitable relief in whole or in part without the express written consent of the Aggrieved.
(Ac) or (B)The Aggrieved shall retain the right to employ its own counsel and to participate in the defense of any Claim, all such expenses incurred the defense of which has been assumed by the Indemnified Party Indemnitor pursuant to Section 6(b) hereof, but the Aggrieved shall bear and shall be solely responsible for its own costs and expenses in connection with such participation will be borne by participation; provided, however, that the Indemnifying Party. Each Party will reasonably Aggrieved shall cooperate in all respects in the defense or prosecution of a Third Party the Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision including refraining from taking any position adverse to the Indemnifying Party of records and information which are reasonably relevant to such Third Party ClaimIndemnitor, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderwhether or not the Aggrieved shall participate in the defense.
(iid) In With respect to liquidated Claims, if within thirty (30) days the event the Indemnifying Party (x) elects Indemnitor has not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of contested such Third Party Claim in a reasonably diligent manner writing, the Indemnitor shall pay the full amount thereof within twenty ten (2010) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense expiration of such Third Party Claimperiod.
Appears in 1 contract
Sources: Stock Exchange Agreement (Matthews Studio Equipment Group)
Third Party Claims. If any Person making a claim for indemnification under this Article VIII (aan “Indemnitee”) The Indemnified Party agrees to give the Indemnifying Party receives written notice in writing of the assertion or commencement of any claim Action made or demand made by, or any other Action instituted by, brought by any Person who is not a Party party to this Agreement (or an Affiliate of a party to this Agreement or a representative of the foregoing) against the Indemnitee (a “Third Party Claim”), the Indemnitee must deliver to the indemnifying party (an “Indemnitor”) a written notice of such Third Party Claim promptly after receiving notice of such Third Party Claim describing in respect reasonable detail the nature of which indemnity may be sought under Section 7.1 in accordance with such Third Party Claim, a good faith estimate of the notice procedures set forth in Section 7.2amount of Losses thereof (if known and quantifiable) and the basis thereof; provided, however, that any delay in delivering any Indemnification Notice the failure to so notify an Indemnitor will not affect relieve the indemnification provided hereunder, except Indemnitor of its obligations hereunder unless and to the extent the Indemnifying Party Indemnitor will have been materially be actually prejudiced as a result of by such delay. From and after the delivery of a Indemnification Notice with respect failure to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimso notify. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party Indemnitor will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless of such Third Party Claim is reasonably likely at such Indemnitor’s expense or, by giving written notice to materially the Indemnitee in which the Indemnitor accepts and adversely affect assumes the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or responsibility for all Losses relating to such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (subject to the “Defense Notice Period”) to notify the Indemnified Party of its election limitations set forth below), will be entitled to assume the defense of such Third Party Claim. All Losses Claim by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided, however, that:
(i) the Indemnitee will be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose and the Indemnitee will be responsible for the fees and expenses of such separate counsel; provided, further that if (A) any fees and expenses of such separate counsel were incurred by the Indemnified Indemnitee before the date the Indemnitor assumes control of such Third Party prior to Claim or (B) any assumption fees or expenses of such separate counsel engaged by the Indemnifying Party Indemnitee are incurred following a determination that, in the reasonable opinion of counsel to the Indemnitee, there are legal defenses available to an Indemnitee that are inconsistent with those available to the Indemnitor, then, notwithstanding the foregoing, such fees and expenses of separate counsel will be borne by the Indemnitor (subject to the limitations set forth herein); and
(ii) the Indemnitor will not be entitled to assume control of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless if (A) the Indemnifying Party and the Indemnified Party are both named parties such claim relates to the proceedings and a Governmental Entityor arises in connection with any criminal proceeding, arbitrator action, indictment, allegation or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or investigation; (B) the Indemnified Party assumes Indemnitee reasonably believes an adverse determination with respect to such claim would be materially detrimental to or injure the defense Indemnitee’s reputation or future business prospects; (C) the claim seeks an injunction or equitable relief against the Indemnitee; (D) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; (E) such claim is asserted directly or on behalf of a Third Party Claim after the Indemnifying Party has failed to diligently pursue Person that is a Third Party Claim it has assumed, and in the case of (A) customer or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result supplier of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i)Company; or (zF) after assuming the defense Indemnitor, in the reasonable judgment of a Third Party Claimthe Indemnitee, fails does not have the financial resources to conduct satisfy the defense amount of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving claim, provided, that before the Indemnitee making such judgment, the Indemnitee will give the Indemnitor written notice from and the Indemnified Party opportunity to demonstrate to the effect that Indemnitee in writing such Indemnitor’s financial ability to satisfy the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense amount of such Third Party Claimclaim.
Appears in 1 contract
Third Party Claims. (ai) The Indemnified Party agrees In the event that a Person entitled to give the Indemnifying Party indemnification hereunder (an “Indemnitee”) receives notice in writing of the assertion of any claim or demand made by, the commencement of any claim or any other Action instituted by, any Person not similar proceeding by a Party to this Agreement (a “Third Party Claim”) third party in respect of which indemnity may be sought under Section 7.1 the provisions of this Article IX (a “Third Party Claim”), the Indemnitee shall promptly notify the party that would be required by this Article IX to indemnify the Indemnitee in respect of such Third Party Claim (the “Indemnitor”) in writing of such Third Party Claim (such notice, a “Notice of Claim”). If the Indemnitee fails to timely notify the Indemnitor of the Notice of Claim and the Indemnitor’s ability to protect its interest is materially impaired, the Indemnitor will not be obligated to indemnify the Indemnitee to the extent of such material impairment. The Notice of Claim shall describe the Third Party Claim in reasonable detail and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnitee.
(ii) The Indemnitor will have fifteen (15) Business Days from the date on which the Indemnitor received the Notice of Claim (the “Indemnitor Defense Review Period”) to notify the Indemnitee that the Indemnitor desires to assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel reasonably acceptable to the Indemnitee and at the sole cost and expense of the Indemnitor (a “Third Party Defense”). If the Indemnitor assumes the Third Party Defense in accordance herewith, (A) the Indemnitee may retain separate co-counsel at its own expense; (B) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitee which shall not be unreasonably withheld; (C) the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation under this Agreement; (D) the Indemnitor shall conduct the Third Party Defense actively and diligently and provide copies of all correspondence and related documentation in connection with the notice procedures set forth Third Party Defense to the Indemnitee; and (E) the Indemnitee will provide reasonable cooperation in Section 7.2the Third Party Defense. Notwithstanding the foregoing, if counsel for the Indemnitee reasonably determines that there is a conflict between the positions of the Indemnitor and the Indemnitee in conducting the defense of such Action, then counsel for the Indemnitee shall be entitled, if the Indemnitee so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Indemnitee and the Indemnitor shall be liable for the reasonable legal fees and expenses of the Indemnitee; provided, that the Indemnitor shall not be required to pay for more than one such counsel (plus any appropriate local counsel) for all Indemnitees in connection with any Third Party Claim.
(iii) During the Indemnitor Defense Review Period and if the Indemnitor does not assume the Third Party Defense prior to the end of the Indemnitor Defense Review Period, the Indemnitee shall have the right to assume the Third Party Defense with counsel of its choice and the Indemnitor shall be liable for the reasonable legal fees and expenses of the Indemnitee (provided, that the Indemnitor shall not be required to pay for more than one such counsel (plus any appropriate local counsel) for all Indemnitees in connection with any Third Party Claim); provided, however, that any delay the Indemnitor shall have the right, at its expense, to participate in delivering any Indemnification Notice such Third Party Defense but the Indemnitee shall control the investigation, defense and settlement thereof. The Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The Indemnitee shall not affect the indemnification provided hereunder, except consent to the extent the Indemnifying Party will have been materially prejudiced as a result entry of such delay. From and after the delivery of a Indemnification Notice any judgment or enter into any settlement with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes without the prior written consent of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts Indemnitor which shall not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)be unreasonably withheld.
(biv) (i) With respect to a Third Party ClaimNotwithstanding the foregoing, the Indemnifying Party Indemnitor will not be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty Defense if (30a) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result seeks, in addition to or in lieu of the Indemnified Party's election to defend monetary damages, any injunctive or other equitable relief, (b) the Third Party Claim as provided relates to or arises in Section 7.3(b)(i); connection with any criminal action, indictment or allegation, (zc) after assuming a legal conflict exists between the defense Indemnitee and the Indemnitor in respect of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty accordance with Section 9.06(a)(ii); (20d) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not involves a customer or supplier listed on Section 4.18(a) or 4.19(a) of the Seller Disclosure Schedule, (e) the maximum reasonably foreseeable damages or amount that may be adversely affected by assuming claimed exceeds the defense of such limitations set forth in Section 9.02 or (f) the Third Party ClaimClaim would give rise to Losses which are more than the amount indemnifiable by the Indemnitor pursuant to this Article IX.
Appears in 1 contract
Third Party Claims. An Indemnified Party shall give any Indemnitor prompt written notice of the institution by a third party of any actions, suits or other administrative or judicial proceedings if the Indemnified Party would be entitled to claim indemnification under this Article IX in connection with any such action, suit or other proceeding. The Indemnitor shall, provided that it gives notice within ten (a10) business days of receipt of notice from the Indemnified Party, have the option of assuming the defense of such action with counsel reasonably satisfactory to such Indemnified Party (and such costs of defense shall be included in Damages with respect to such claim). In this regard, Gersten Savage LLP shall be deemed reasonably satisfactory to such I▇▇▇▇▇▇▇ied Party. The Indemnified Party agrees shall be entitled to give the Indemnifying Party notice participate in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance such defense with the notice procedures set forth in Section 7.2separate counsel at its own expense; provided, however, that any delay if, in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except reasonable opinion of counsel to the extent Indemnified Party, a non-waivable conflict exists between the Indemnifying Indemnified Party will and the Indemnitor that would make the failure to have been materially prejudiced as a result such separate representation either unethical or illegal, the reasonable cost of such delayseparate representation shall be paid by the Indemnitor. From and after If an Indemnitor assumes the delivery defense of such an action, (x) no compromise or settlement thereof may be effected by the Indemnitor without the Indemnified Party's consent (which shall not be unreasonably withheld, conditioned or delayed) unless (i) there is no finding or admission of any violation of a Indemnification Notice Legal Requirement or any violation of the rights of any person and no effect on any such claims that may be made against the Indemnified Party and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor and (y) the Indemnitor shall have no liability with respect to a Third Party Claim, any compromise or settlement thereof effected by the Indemnified Party will deliver that would involve a payment by the Indemnitor of Damages without its consent (which shall not be unreasonably withheld, conditioned or delayed). If notice is given to an Indemnitor of the Indemnifying Partycommencement of any Action pursuant hereto and it does not, within ten (10) Business Days business days after the Indemnified PartyIndemnitor's receipt thereofnotice is received, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating give notice to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of defense, the Indemnitor shall be bound by any determination made in such Third Party Claim. All Losses incurred action or any commercially reasonable compromise or settlement thereof effected by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but Any failure to give prompt notice under this Section 9.4 shall not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the bar an Indemnified Party's right to claim indemnification under this Article IX, except to the extent that an Indemnitor shall have been harmed by such failure. Notwithstanding anything to the contrary set forth in this Section 9.4, in the event that the third party claim is covered by insurance and the insurance policy provides for such Third Party Claim will not be adversely affected by assuming procedures other than those set forth herein as a condition to coverage, the defense of such Third Party Claimprocedures set forth in the insurance policy shall supersede those set forth herein to the extent that they are inconsistent with those set forth herein.
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Western Power & Equipment Corp)
Third Party Claims. In the event that any action, claim, demand or proceeding with respect to which the Bidder Entities may be liable to any Beneficiary pursuant to Section 28.3 (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Third-Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that is asserted or announced by any delay in delivering third party (including any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimgovernmental agency) against any Beneficiary, the Indemnified Company shall afford, or use its best efforts to cause the Beneficiary to afford, the Bidder Entities the opportunity to defend the Beneficiary against the Third-Party will deliver Claim pursuant to this Section 28.4 (the Indemnifying Party“Assumption of Defense”).
(a) If the Bidder Entities elect to pursue the Assumption of Defense, the Bidder Entities shall within ten twenty (1020) Business Days after upon receipt of the Indemnified Party's receipt thereof, true, correct and complete copies Company’s notice of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Third-Party Claim for purposes notify the Company or the respective Beneficiary of the procedures set forth in this Section 7.3, it being the their intent of the parties that Seller will to assume the such defense and settlement the Company shall cooperate and cause the Group, at the Bidder Entities’ expense, to cooperate in each phase of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance Assumption of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)Defense.
(b) The Bidder Entities shall, upon written request of the Beneficiary, regularly consult with the Beneficiary on the status of the Third-Party Claim and give due consideration to comments or recommendations of the Beneficiary. No action by any Beneficiary or its respective representatives in connection with the defense shall be construed as an acknowledgement (iwhether express or implied) With respect of the Third-Party Claim or of any underlying facts related to such claim.
(c) If the Bidder Entities want to defend themselves against any claim of a Third Party ClaimBeneficiary pursuant to this Section 28.4 based on an Indemnification Defense, the Indemnifying Party will Bidder Entities shall inform the respective Beneficiary in writing without delay. The Beneficiary shall then be entitled at any time to participate in revoke the defense thereof and, if it so elects, Assumption of Defense with immediate effect by giving written notice to assume the defense thereof, unless such Third Bidder Entities.
(d) No Beneficiary may compromise or settle any Third-Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (which the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior Bidder Entities may be liable to any assumption by Beneficiary pursuant to Section 28.3 without the Indemnifying Party prior written consent of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless Parent (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claimbe unreasonably withheld, whether by not giving the Indemnified Party timely notice of its desire to so defend conditioned or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(idelayed); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. (a) The An Indemnified Party agrees that desires to give the Indemnifying Party notice in writing seek indemnification under any part of the assertion of this Section 11 with respect to any claim or demand made byactions, suits, or any other Action administrative or judicial proceedings (each, an “Action”) that may be instituted byby a third party shall give each Indemnitor prompt notice of a third party’s institution of such Action. After such notice, any Person not a Party Indemnitor may, or if so requested by such Indemnified Party, any Indemnitor shall, participate in such Action or assume the defense thereof, with counsel satisfactory to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2such Indemnified Party; provided, however, that any delay such Indemnified Party shall have the right to participate at its own expense in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result defense of such delayAction; provided, further, that if the Indemnitor assumes such defense thereof, the Indemnitor shall be conclusively deemed to have acknowledged that the Action is within the scope of its indemnity obligation hereunder and shall hold the Indemnified Party harmless from and against all Damages resulting therefrom. From and after If the delivery Indemnitor does not, or is not requested to, assume the defense of a Indemnification Notice with respect to a Third Party Claiman Action, the Indemnified Party will deliver shall not consent to the Indemnifying Partyentry of any judgment or enter into any settlement, within ten except with the written consent of the Indemnitor (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by which consent shall not be unreasonably withheld). If the Indemnified Party relating to is successful in its defense of an Action, the Third Party Claim. Any CIE Claim Indemnitor shall nonetheless be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, responsible for the avoidance reasonable attorneys’, consultants’, and other professional fees, and disbursements of doubtevery kind, if any such exposure is created that results in Losses to any of the Buyer Indemnified Partiesnature, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses description incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with therewith. An Indemnified Party’s right to claim indemnification under this Section 11 shall be impaired if, and only to the extent that, such participation will Indemnified Party fails to give notice under this Section 11.7 as promptly as may reasonably be borne practicable and an Indemnitor shall have been actually and materially prejudiced by such failure. Notwithstanding anything herein to the Indemnifying Party. Each Party will reasonably cooperate in contrary, without the defense or prosecution written consent of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's requestBuyer, the provision Seller shall not be entitled to assume any Action (each, a “Prohibited Action”): (a) to the Indemnifying Party extent that any such Action seeks, in addition to or in lieu of records and information which are reasonably relevant to such Third Party Claimmonetary damages, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend injunctive or otherwiseother equitable relief; (yb) is not entitled the Action relates to defend or arises in connection with any criminal proceeding, action, indictment, allegation, or investigation; (c) the Third Party Claim as Action involves a result customer or supplier of the Indemnified Party's election Business; (d) the Buyer reasonably believes an adverse determination with respect to defend the Third Party Claim as provided in Section 7.3(b)(i)Action would be detrimental to or injure the reputation or future business prospects of the Business, the Buyer, or its Affiliates; or (ze) the amount of claimed Liabilities in such Action exceeds the Indemnification Cap (after assuming reducing such Indemnification Cap by the defense amount of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from other claims for indemnification made by the Indemnified Party Buyer Parties against the Seller Parties). If the Buyer consents in writing to the effect that the Indemnifying Party has so failedSeller’s assumption of any Prohibited Action, the Indemnified Party will have Seller shall not consent to the right but not entry of any judgment or enter into any settlement with respect to such Prohibited Action, except with the obligation to assume its own defense; it being understood that prior written consent of the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimBuyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Health Alternatives Inc)
Third Party Claims. The obligations of an Indemnifying Party with respect to claims for indemnification arising from claims or actions by third parties (athe "Third Party Claims") The shall be governed by and subject the following additional terms and conditions: if an Indemnified Party agrees to shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party notice in writing of such Third Party Claim within 30 calendar days of the assertion receipt of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with such notice by the notice procedures set forth in Section 7.2Indemnified Party; provided, however, that failure to provide such notice shall not release the Indemnifying Party from any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, of its obligations under this Article 13 except to the extent the Indemnifying Party will have been is materially prejudiced as a result of by such delayfailure. From and after If the delivery of a Indemnification Notice with respect Indemnifying Party acknowledges in writing its obligation to a Third Party Claim, indemnify the Indemnified Party will deliver to the Indemnifying Partyhereunder against any liability that may arise under NOTE: WHERE USED IN THIS EXHIBIT, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim[***] INDICATES MATERIAL WHICH HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT WHICH HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will shall be entitled to participate in assume and control the defense thereof and, if it so elects, at their expense and with counsel selected by the Indemnifying Party (which counsel shall be reasonably satisfactory to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified ) provided that the Indemnifying Party gives written notice of its intention to do so within five calendar days after receipt of the existence of notice from the condition set forth in the preceding sentence, Indemnified Party. After written notice from the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third thereof, the Indemnifying Party Claim. All Losses will not be liable to the Indemnified Party hereunder for any legal or other expenses subsequently incurred by the Indemnified Party prior in connection with the defense thereof other than reasonable costs of investigation and such other expenses as have been approved in advance; provided, however, that (i) if counsel for the Indemnified Party determines in good faith that there is a conflict that requires separate representation for the Indemnifying Party and the Indemnified Party, or (ii) the Indemnifying Party fails to assume or proceed in a timely and reasonable manner with the defense of such action or fails to employ counsel reasonably satisfactory to the Indemnified Party in any assumption such action, then in either such event the Indemnified Party shall be entitled to select its own counsel and, if necessary, local counsel of its own choice to represent the Indemnified Party. If the Indemnified Party makes such election, then the Indemnifying Party shall not, or no longer, be entitled to assume the defense thereof on behalf of such Indemnified Party and such Indemnified Party shall be entitled to indemnification under this Article 13 (including, without limitation, reasonable fees and expenses of such counsel) to the extent provided in this Indemnity provision. Such counsel shall, to the fullest extent consistent with its professional responsibilities, cooperate with the Indemnifying Party and any counsel designated by the Indemnifying Party. Nothing contained herein shall preclude the Indemnified Party, at its own expense, from retaining its own counsel to represent the Indemnified Party of the defense of a Third Party Claim will in any action with respect to which indemnity may be reimbursed by sought from the Indemnifying Party hereunder and for which the Indemnified Party is not entitled to engage its own counsel at the extent expense of the Indemnifying Party as provided for hereunder. If the Indemnifying Party has assumed the defense and is required proceeding with the defense in a timely manner, then the Indemnifying Party shall not be liable under this Agreement for any settlement made by an Indemnified Party without Indemnifying Party's prior written consent, which shall not be unreasonably withheld, and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from, from and against and in respect any loss or liability by reason of Losses incurred the settlement of any claim or suffered by action with the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense consent of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Indemnifying Party will participate in shall not settle any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator claim or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result action without prior written consent of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will which shall not be adversely affected by assuming the defense of such Third Party Claimunreasonably withheld.
Appears in 1 contract
Sources: Wholesale Service Provider and Distribution Agreement (I Link Inc)
Third Party Claims. (a) The If any Indemnified Party agrees receives notice of the assertion or commencement of any action, suit, claim or other legal proceeding made or brought by any Person who is not a Party or an Affiliate of a Party or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party prompt written notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party thereof. The failure to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the give such prompt written notice procedures set forth in Section 7.2; providedshall not, however, that any delay in delivering any Indemnification Notice will not affect relieve the Indemnifying Party of its indemnification provided hereunderobligations, except and only to the extent that the Indemnifying Party will have been materially prejudiced forfeits rights or defenses by reason of such failure. To the extent the Third-Party Claim arises as a result of a breach of the representations set forth in Article III, Buyer shall also provide prompt notice of such delayThird-Party Claim to the Insurer as provided in the R&W Policy. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, Each notice by the Indemnified Party will deliver to shall describe the Indemnifying PartyThird-Party Claim in reasonable detail, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete shall include copies of all material notices written evidence thereof and documents (including court papers) received shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party relating shall have the right to participate in, or by giving written notice to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3Indemnified Party, it being the intent of the parties that Seller will to assume the defense and settlement of any CIE ClaimThird-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, which shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party shall cooperate in good faith in such defense; provided that in such event, Seller will use reasonable best efforts the Indemnifying Party shall not be entitled to create assume the defense of any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) Third-Party Claim (i) With respect for equitable or injunctive relief or (ii) that alleges Losses in excess of the Indemnifying Party’s maximum indemnification obligations under this Agreement and the Indemnified Party believes in good faith that such allegation would be reasonably likely to a Third lead to Losses in excess of the Indemnifying Party’s maximum indemnification obligation. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 7.05(b), it shall have the Indemnifying right to take such action as it deems reasonably necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party will be entitled Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third of any Third-Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and expenses of such counsel shall be at the expense of the Indemnified Party, provided that if (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense or (B) there exists a conflict of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party are both named parties to shall be liable for the proceedings reasonable fees and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation expenses of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to in each jurisdiction for which the Indemnified Party reasonably determines counsel is required. If the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to compromise or defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third such Third-Party Claim, fails to conduct diligently defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 7.05(b), pay, compromise, or defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. The Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.07) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Third-Party Claim.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within Within ten (10) Business Days business days after an Indemnitee receives notice of any third party claim or the Indemnified Party's receipt thereofcommencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, truesuch Indemnitee shall, correct if a claim in respect thereof is to be made against an Indemnitor under Section 7, notify such Indemnitor in writing in reasonable detail of such claim or action and complete include with such notice copies of all material notices and documents (including court papers) served on or received by the Indemnified Party relating to the Third Party ClaimIndemnitee from such third party. Any CIE Claim shall be considered a Third Party Claim for purposes Upon receipt of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claimnotice, the Indemnifying Party will Indemnitor shall be entitled to participate in the defense thereof and, if it so electssuch claim or action, to assume the defense thereofthereof with counsel reasonably satisfactory to the Indemnitee, unless and to settle or compromise such Third Party Claim is reasonably likely to materially and adversely affect claim or action, provided that such settlement or compromise shall be effected only with the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party consent of the existence Indemnitee, which consent shall not be unreasonably withheld or delayed. After notice to the Indemnitee of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its Indemnitor’s election to assume the defense of such Third Party Claim. All Losses claim or action, the Indemnitor shall not be liable to the Indemnitee under Section 7 for any legal or other expenses subsequently incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of Indemnitee in connection with the defense thereof other than reasonable costs of a Third Party Claim will be reimbursed by investigation, provided that the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend employ counsel at its the Indemnitee’s expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claimrepresent it if either (x) such claim or action involves remedies other than monetary damages and such remedies, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereofIndemnitee’s reasonable judgment, including the opportunity to participate in any discussions could have a material adverse effect on such Indemnitee or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (Ay) the Indemnifying Party and the Indemnified Party are both named parties Indemnitee may have available to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of it one or more defenses or counterclaims that which are inconsistent with one or more of those that defenses or counterclaims which may be available alleged by the Indemnitor. If the Indemnitor does not elect to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes assume the defense of such claim or action within forty five (45) days of the Indemnitee’s delivery to notice of such a Third Party Claim after claim or action, the Indemnifying Party has failed Indemnitee shall be entitled to diligently pursue a Third Party Claim assume the defense thereof. Unless it has assumedbeen conclusively determined through a final judicial determination (or settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this Section 7.2(d), the Indemnitee shall act reasonably and in accordance with its good faith business judgment with respect to such defense, and shall not settle or compromise any such claim or action without the consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. The parties hereto agree to render to each other such assistance as may reasonably be requested in order to ensure the case proper and adequate defense of (A) any such claim or (B)action, all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and including making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderrelevant materials or to testify at any proceedings relating to such claim or action.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Stainless & Alloy Products Inc)
Third Party Claims. (a) The If any Buyer Indemnified Party agrees to give the Indemnifying Party receives notice in writing of the assertion or commencement of any claim or demand made byLegal Proceeding (whether against the Company, Buyer or any other Action instituted by, Person) made or brought by any Person who is not a Party party to this Agreement or an Affiliate of a party to this Agreement or a Representative of any of the foregoing (a “Third Party Claim”) against such Buyer Indemnified Party with respect to which the Indemnifying Securityholders are obligated to provide indemnification under this Agreement, the Buyer Indemnified Party shall give the Securityholders’ Representative reasonably prompt written notice thereof. The failure to promptly give such written notice shall not, however, relieve the Indemnifying Securityholders of their indemnification obligations, except and only to the extent that the Indemnifying Securityholders are actually and materially prejudiced thereby. Such notice by the Buyer Indemnified Parties shall describe the Third Party Claim in respect reasonable detail, shall include copies of which indemnity all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Losses that have been or may be sought under Section 7.1 sustained by the Buyer Indemnified Parties. The Securityholders’ Representative shall have the right to participate in accordance with or, upon providing written notice to the Buyer Indemnified Parties within fifteen (15) days of receipt of such notice procedures of such Third Party Claim in which the Securityholders’ Representative acknowledges on behalf of the Indemnifying Securityholders without qualification the Indemnifying Securityholders’ indemnification obligation hereunder (subject only to the applicable limitations set forth in Section 7.28.3 and this Section 8.6), to assume the defense of any Third Party Claim at the Indemnifying Securityholders’ expense and by the Securityholders’ Representative own counsel. In the event that the Securityholders’ Representative assumes the defense of any Third Party Claim, subject to Section 8.7(b), the Buyer Indemnified Parties shall cooperate reasonably in the defense thereof. The Buyer Indemnified Parties shall have the right to participate in the defense of any Third Party Claim with counsel selected by it, subject to the Securityholders’ Representative’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Buyer Indemnified Parties; provided, however, that any delay if in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except reasonable opinion of counsel to the extent Buyer Indemnified Parties, there are legal defenses available to a Buyer Indemnified Party that are different from or additional to those available to the Indemnifying Securityholders, such fees and disbursements shall be at the expense of the Indemnifying Securityholders. If the Securityholders’ Representative elects not to compromise or defend such Third Party will have been materially prejudiced Claim, fails to give timely and sufficient notification to the Buyer Indemnified Parties in writing of its election to defend as a result of provided in this Agreement, or loses its right to defend such delay. From and after the delivery of a Indemnification Notice with respect Third Party Claim by failing to a diligently defend such Third Party Claim, the Buyer Indemnified Parties may, subject to Section 8.6(b), without prejudice to its right to indemnification hereunder, pay, compromise and defend such Third Party will deliver Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Notwithstanding anything to the Indemnifying Partycontrary contained in this Section 8.6, within ten the Securityholders’ Representative shall not be entitled to assume control of a Third Party Claim if (10i) Business Days after the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, investigation or allegation, (ii) the Third Party Claim seeks injunctive or other equitable relief or relief other than for monetary Damages against the Buyer Indemnified Party's receipt thereofParties, true(iii) the Buyer Indemnified Parties reasonably believe that the Third Party Claim, correct and complete copies if adversely determined, would impair in any material respect the financial condition, business, operations, reputation or prospects of all material notices and documents the Buyer Indemnified Parties or any of their respective Affiliates, (including court papersiv) received an actual or readily apparent conflict of interest (as determined by the Buyer Indemnified Party relating Parties after obtaining advice of counsel) exists between the Indemnifying Securityholders and the Buyer Indemnified Parties with respect to the Third Party Claim. Any CIE Claim shall be considered a that precludes effective joint representation, (v) the Third Party Claim for purposes of is, in the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any discretion of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for subject to recovery under the R&W Insurance Policy, or (vi) the amounts reasonably expected to be incurred in connection with such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, together with all other outstanding claims on the Indemnifying Party will be entitled to participate Indemnity Escrow Fund, exceed the amount remaining in the defense thereof andIndemnity Escrow Fund. If, if it so elects, pursuant to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentencethis Section 8.6(a), the Indemnifying Party will have thirty (30) days (Buyer Indemnified Parties so contest, defend, litigate or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to settle a Third Party Claim (for which they are entitled to indemnification hereunder, the “Defense Notice Period”) to notify the Buyer Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will Parties shall be reimbursed by the Indemnifying Party to Securityholders for the extent the Indemnifying Party is required to indemnify reasonable attorneys’ fees and hold harmless the Indemnified Party from, against and in respect other expenses of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend defending the Third Party Claim as a result which are incurred from time to time, promptly following the presentation to the Securityholders’ Representative of the Indemnified Party's election itemized bills for such attorneys’ fees and other expenses, subject, however, to defend the Third Party Claim as provided any applicable limitations set forth in Section 7.3(b)(i); or 8.3 this Section 8.6. Subject to any applicable limitations set forth in this Section 8.6, all expenses (zincluding attorneys’ fees) after assuming incurred by the defense of a Third Party Claim, fails to conduct Securityholders’ Representative in connection with the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that foregoing shall be paid by the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimSecurityholders.
Appears in 1 contract
Third Party Claims. (ai) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered Other than a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in relates to Taxes (such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party ClaimClaim being governed exclusively by Section 5.14(e)(iii)), the Indemnifying Party will Indemnitor shall be entitled entitled, by written notice to participate in an Indemnitee, to inform such Indemnitee that the defense thereof and, if it so elects, Indemnitor desires to assume the defense thereof, unless such or prosecution of any Third Party Claim is and any litigation resulting therefrom with counsel reasonably likely acceptable to materially the Indemnitee and adversely affect at the Indemnified Party and/or Indemnitor’s expense; provided, that the Indemnified Party's Affiliates other than as Indemnitor will not be entitled to assume the defense of such claim if (i) the claim for indemnification relates to or arises in connection with any action in respect of a result criminal charge against such Indemnitee; (ii) the claim seeks an injunction or equitable relief against such Indemnitee; (iii) the Indemnitor fails to assume the defense of monetary damages. Unless such claim reasonably promptly following notice thereof; or (iv) the Indemnified Party will have notified Indemnitor does not confirm, assuming the Indemnifying Party of the existence of the condition set forth facts asserted in the preceding sentencenotice of such claim are true, its obligation to indemnify and pay Damages for such claim; provided, further, that notwithstanding the Indemnifying foregoing, Torch shall be entitled to assume and control the defense or prosecution of any Third Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by Claim and any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice litigation resulting therefrom with respect to a Third Party Claim (the “Defense Notice Period”) to notify matters set forth on Section 5.14 of the Indemnified Party of Torch Disclosure Letter. An Indemnitee may retain separate co-counsel at its election to assume sole cost and expense and participate in the defense of such Third Party Claim. All Losses incurred by ; provided, however, that such Indemnitee shall be entitled, at the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its Indemnitor’s expense, with to retain one firm of separate counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence its own choosing (along with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless one required local counsel) if (A) the Indemnifying Party Indemnitor and the Indemnified Party Indemnitee so mutually agree in writing; (B) the Indemnitor fails within a reasonable time to retain counsel reasonably satisfactory to such Indemnitee (whose acceptance shall not be unreasonably withheld, conditioned, or delayed); (C) such Indemnitee shall have reasonably concluded based on the written advice of outside legal counsel that there may be legal defenses available to it that are both different from or in addition to those available to the Indemnitor; or (D) the named parties to in any such proceeding (including any impleaded parties) include both the proceedings Indemnitee and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that Indemnitor and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them or reasonably foreseeable conflicts of interest based on the availability to the Indemnified Party written advice of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderoutside legal counsel.
(ii) In Other than a Third Party Claim that relates to Taxes (such Third Party Claim being governed exclusively by Section 5.14(e)(iii)), whether or not the event Indemnitee has assumed the Indemnifying defense of any Third Party Claim, an Indemnitee shall not be entitled to indemnification hereunder with respect to any settlement entered into or any judgment consented to with respect to a Third Party Claim without the prior written consent of the Indemnitor (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything in this Agreement to the contrary, the Indemnitor shall not agree to any settlement of or consent to the entry of any judgment with respect to any Third Party Claim without the prior written consent of the applicable Indemnitee (such consent not to be unreasonably withheld, conditioned or delayed), unless such settlement or judgment would (x) elects include a complete and unconditional release of such Indemnitee from all liabilities or obligations with respect thereto, (y) not impose any liability or obligation (other than confidentiality and other customary de minimis obligations, but including any equitable remedies) on the Indemnitee or its Affiliates in respect of such Third Party Claim and (z) not involve a finding or admission of any wrongdoing on the part of any of the Indemnitee or its Affiliates.
(iii) Notwithstanding the foregoing provisions of this Section 5.14(e): If a Third Party Claim includes or could reasonably be expected to defend the Indemnified Party against include both a claim for Taxes of any ContentCo Entity for which Torch is responsible pursuant to Section 5.14(a) (“Torch Taxes”) and a claim for Taxes of any ContentCo Entity for which United is responsible pursuant to Section 5.14(b) (“United Taxes,” and such a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire a “Mixed Tax Claim”), Torch and United shall cooperate in good faith to so defend or otherwise; (y) is not entitled to defend the sever such Third Party Claim as a result of the Indemnified Party's election into separate Tax Proceedings relating to defend the Torch Taxes and United Taxes, respectively. If such Third Party Claim is not so severable, Torch (if the claim(s) for Torch Taxes exceeds or reasonably could be expected to exceed in amount the claim(s) for United Taxes) or otherwise United (Torch or United, as provided in Section 7.3(b)(ithe case may be, the “Tax Controlling Party”); or (z) after assuming the defense of a Third Party Claim, fails shall be entitled to conduct control the defense of such Third-Party Claim (such Third-Party Claim, a “Tax Claim”). In such case, (i) the other party (the “Tax Non-Controlling Party”) shall be entitled to participate fully (at the Tax Non-Controlling Party’s sole cost and expense) in the conduct of such Tax Claim, (ii) the Tax Controlling Party shall provide the Tax Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Claim, (iii) the Tax Controlling Party shall consult with the Tax Non-Controlling Party before taking any significant action in connection with such Tax Claim, (iv) the Tax Controlling Party shall consult with the Tax Non-Controlling Party and offer the Tax Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Claim, (v) the Tax Controlling Party shall defend such Tax Claim diligently and in good faith as if it were the only party in interest in connection with such Tax Claim, and (vi) the Tax Controlling Party shall not settle, compromise or abandon any such Tax Claim without obtaining the prior written consent of the Tax Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed. The reasonable costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of the claim for Torch Taxes and United Taxes. Torch shall be entitled to control any Third Party Claim in (and any portion of a severable Mixed Tax Claim) that includes or would reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party be expected to the effect include solely Torch Taxes; provided that the Indemnifying Party has so failed, the Indemnified Party will have the right but Torch shall not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for settle such Third Party Claim will (or portion thereof) without the prior written consent of United (which consent shall not be adversely affected by assuming the defense of unreasonably withheld, conditioned or delayed) if such settlement would have an adverse effect on United that is material. With respect to any Third Party ClaimClaim against United for Taxes described in Section 5.14(a)(iv)(4), Torch shall be the Tax Controlling Party and United shall be the Tax-Non Controlling Party. Notwithstanding any of the foregoing, Torch shall have the exclusive right to control in all respects, and neither United nor any of its Affiliates shall be entitled to participate in, any Tax Proceeding with respect to any Tax Return that includes Torch or any of its Affiliates (other than any ContentCo Entity).
Appears in 1 contract
Third Party Claims. (a) The If a Buyer Indemnified Party agrees desires to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought seek indemnification under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice 10.1 with respect to any actions, suits or other administrative or judicial proceedings (each, an "Action") that may be instituted by a Third Party Claimthird party, the such Buyer Indemnified Party will deliver to shall give the Indemnifying Party, within ten (10) Business Days after Parent prompt notice of a third party's institution of such Action. Upon the Indemnified PartyBuyer's receipt thereofof notice of an Action, true, correct such Buyer Indemnified Party shall promptly notify the Parent in writing specifically referring to this Section 10.4(a) and complete in reasonable detail of such Action and include with such notice copies of all material notices and documents (including court papers) served on or received by the such Buyer Indemnified Party relating from such third party; provided, however, that no failure or delay in the giving of such notice shall relieve the indemnifying Party of any Liability hereunder (except to the Third extent the rights of such indemnifying Party Claimhave been prejudiced thereby). Any CIE Claim shall be considered a Third Party Claim for purposes Upon receipt of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claimnotice, the Indemnifying Party will Parent shall be entitled to participate in the defense thereof and, if it so electssuch Action, to assume the defense thereofthereof with counsel reasonably satisfactory to such Buyer Indemnified Party, unless and to settle or compromise such Third Party Claim is reasonably likely to materially and adversely affect the Action, provided that if such Buyer Indemnified Party and/or has elected to be represented by separate counsel pursuant to the proviso to the following sentence, such settlement or compromise shall be effected only with the consent of such Buyer Indemnified Party's Affiliates other than as a result of monetary damages, which consent shall not be unreasonably withheld or delayed. Unless the After notice to such Buyer Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its Parent's election to assume the defense of such Third Action, the Parent shall not be liable to such Buyer Indemnified Party Claim. All Losses under Section 10.1 for any legal or other expenses subsequently incurred by the such Buyer Indemnified Party prior to any assumption by the Indemnifying Party of in connection with the defense thereof other than reasonable costs of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the investigation, provided that such Buyer Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend at its expenseemploy counsel to represent such Buyer Indemnified Party if either (a) such Action involves remedies other than monetary damages and such remedies, with counsel selected by the Indemnifying Party that is reasonably acceptable to the in such Buyer Indemnified Party. Once the Indemnifying Party has duly assumed the defense of 's reasonable judgment, could have a Third Party Claim, the material adverse effect on such Buyer Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The (b) such Buyer Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties may have available to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of it one or more defenses or counterclaims that are inconsistent with one or more of those defenses or counterclaims that may be available alleged by the Parent, and in any such event the fees and expenses of such separate counsel shall be paid by such Buyer Indemnified Party. If the Parent does not elect to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes assume the defense of a Third such Action within 45 Business Days of such Buyer Indemnified Party's delivery of notice of such Action, such Buyer Indemnified Party Claim after shall be entitled to assume the Indemnifying defense thereof. If the Parent assumes such defense, such Buyer Indemnified Party shall have the right to participate in the defense thereof and to employ counsel (not reasonably objected to by the Parent), at its own expense, separate from the counsel employed by the Parent, it being understood that the Parent shall control such defense. The Parent shall be liable under this Section 10.4(a) for the fees and expenses of counsel employed by such Buyer Indemnified Party for any period during which the Parent has failed to diligently pursue a Third assume the defense thereof (other than during the period prior to the time such Buyer Indemnified Party Claim shall have given notice of the third party claim as provided above). Unless it has assumedbeen conclusively determined through a final, non-appealable order of a court of competent jurisdiction (or settlement tantamount thereto) that the Parent is not liable to such Buyer Indemnified Party under this Section 10.4(a), such Buyer Indemnified Party shall act reasonably and in accordance with its good faith business judgment with respect to such defense, and in shall not settle or compromise, any such Action without the case consent of the Parent, which consent shall not be unreasonably withheld or delayed. If the Parent assumes such defense and proposes to accept an offer by such third party to settle such Action, and such Buyer Indemnified Party does not consent to such settlement proposal, the Damages for such Action for which the Parent may be liable hereunder shall not exceed the amount of such settlement proposal. Notwithstanding the foregoing, the Parent shall require the Buyer's consent, which shall not be unreasonably withheld, conditioned or delayed, to assume the defense of any Action (A) or (B), all such and shall be liable for the reasonable fees and expenses of one counsel reasonably acceptable to the Parent incurred by the Buyer Indemnified Party in connection defending such Action) if the Action seeks an order, injunction or other equitable relief or relief other than money damages against the Buyer Indemnified Party which the Buyer Indemnified Party reasonably determines, after conferring with outside counsel, cannot be separated from any related claim for money damages. If such participation will equitable relief or other relief portion of the Action can be borne by so separated from that for money damages, the Indemnifying Party. Each Party will reasonably cooperate in Parent shall be entitled to assume the defense or prosecution of a Third the portion relating to money damages, in accordance with this Section 10.4(a). The Parent and such Buyer Indemnified Party Claim. Such cooperation will include shall render to each other such assistance as may reasonably be requested in order to ensure the retention andproper and adequate defense of any such Action, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and including making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
relevant materials or to testify at any proceedings relating to such Action. The indemnification required by Section 10.1 shall be made only if (iia) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party ClaimParent admits, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) including settlement, that an indemnification obligation is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); owing hereunder or (zb) after assuming a dispute about such indemnification is resolved in accordance with Section 10.2; and then only as and when bills are received or Damages are actually incurred by the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimBuyer.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees Upon receipt by any Person seeking to be indemnified pursuant to Section 9.2 (the "Indemnitee") of notice of any third-party claim, (each a "Claim") against it which has or is expected to give rise to a claim for Damages, the Indemnifying Party Indemnitee shall give prompt written notice in writing thereof to the Person from which it seeks to be indemnified (the "Indemnitor"), indicating the nature of such Claim and the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2basis therefor; provided, however, that any delay in delivering any Indemnification Notice will not affect or failure by the indemnification provided hereunder, except Indemnitee to give notice to the extent Indemnitor shall relieve the Indemnifying Party will have been Indemnitor of its obligations hereunder only to the extent, if at all, that it is materially prejudiced as a result by reason of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)delay or failure.
(b) The Indemnitor shall have 30 days (ior such shorter period as may be required by applicable Legal Requirements) With respect after receipt of the Indemnitee's notice to a Third Party Claimelect, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so electsat its option, to assume the defense thereofof, unless such Third Party Claim is reasonably likely to materially at its own expense and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entityits own counsel, any court or arbitration proceedingssuch Claim. If the Indemnitor desires to undertake to defend any such Claim, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to it shall promptly notify the Indemnified Party Indemnitee of its intention to do so. Notwithstanding an election by the Indemnitor to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will (i) the Indemnitee shall have the right to so defend at its expense, with employ separate counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, and to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entityof such Claim, and to employ the Indemnitor shall bear the reasonable fees, costs and expenses of such separate counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless if (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will Indemnitee shall have determined in good faith that an actual or potential conflict of interest makes representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to counsel selected by the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or Indemnitor inappropriate, (B) the Indemnified Party Indemnitee shall have determined in good faith that the Damages in respect of such Claim may exceed the remaining balance of the applicable Indemnity Cap, or (C) the Indemnitor shall have authorized the Indemnitee to employ separate counsel at the Indemnitor's expense, and (ii) the Indemnitee shall have the right at any time after the Indemnitor assumes the defense of a Third Party such Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct assume the defense of such Third Party Claim in a reasonably diligent manner within twenty if (20y) days after receiving written notice from the Indemnified Party Indemnitor subsequently determines that it does not believe the Claim is one for which the Indemnitee is entitled to the effect that the Indemnifying Party has so failedindemnification, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.compensation or reimbursement under this
Appears in 1 contract
Sources: Contribution Agreement (Northern Border Partners Lp)
Third Party Claims. (a) The If any third party notifies an Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made bymatter which may give rise to a Claim under this Agreement, or any other Action instituted by, any Person not a then the Indemnified Party will promptly forward such notice to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2each Indemnifying Party; provided, however, that no delay on the part of the Indemnified Party in forwarding notice to any delay in delivering any Indemnification Notice Indemnifying Party will not affect the indemnification provided hereunder, except to the extent relieve the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of from any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, liability or obligation hereunder unless the Indemnifying Party will be entitled is materially prejudiced by such failure to participate in the defense thereof andgive notice, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party then solely to the extent the Indemnifying Party is required so prejudiced by such failure. In the event that any Indemnifying Party receives notice of a Claim from an Indemnified Party and agrees to indemnify such Claim and hold harmless is assuming the defense thereof then, within thirty (30) days of receipt of such notice, the Indemnifying Party will in writing acknowledge its obligations hereunder and identify its choice of counsel that will defend the Indemnified Party fromagainst the Claim, against and in respect of Losses incurred or suffered by which choice will be reasonably satisfactory to the Indemnified Party and provided that:
(i) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel (1) to the extent arising from such Third Party Claim. If the Indemnifying Party notifies that the Indemnified Party within the Defense Notice Period reasonably concludes based upon advice of counsel that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense a conflict of a Third Party Claim, interest exists between the Indemnified Party will have and Indemnifying Party or (2) the right, but not named parties to any such action (including any impleaded parties) include both the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) and the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator has been advised by counsel that there may be one or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability more legal defenses available to the Indemnified Party of one which are not available to the Indemnifying Party, or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or but the assertion of which would be adverse to the interest of the Indemnified Party);
(Bii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision not consent to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation entry of any material provided hereunder.
(ii) In judgment or enter into any settlement with respect to the event matter without the written consent of the Indemnifying Party (x) elects not to defend be withheld unreasonably); and
(iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party against a Third Party Claimfrom all liability with respect thereto, whether by not giving without the written consent of the Indemnified Party timely notice of its desire (not to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(ibe withheld unreasonably); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
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Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice Any Buyer Indemnitee seeking indemnification provided for under this Agreement in writing respect of, arising out of the assertion of any or involving a claim or demand made by, or by any other Action instituted by, any third Person not a Party to this Agreement against the Buyer Indemnitee (a “Third Party Claim”) shall notify Sellers in respect writing, and in reasonable detail, of which indemnity may be sought under Section 7.1 in accordance with the Third Party Claim promptly after receipt by such Buyer Indemnitee of written notice procedures set forth in Section 7.2; providedof the Third Party Claim (including personal service of process). Thereafter, howeverthe Buyer Indemnitee shall deliver to Sellers, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and promptly after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's Buyer Indemnitee’s receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party Buyer relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth The failure to give notice as provided in this Section 7.3, 8.06 shall not relieve Sellers of their obligations hereunder except to the extent it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in shall have been materially prejudiced by such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)failure.
(b) (i) With respect In the event of the initiation of any Action against the Buyer Indemnitee by a third Person for which Buyer Indemnitee is seeking indemnification provided for under this Agreement, the Indemnifying Party has the right, exercisable by written notice to the Indemnified Party within 15 days after its receipt of a Claim Notice from the Indemnified Party relating to a Third Party Claim, subject to the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition limitations set forth in the preceding sentencethis Section 8.06, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim and appoint lead counsel for such defense (so long as such lead counsel is reasonably acceptable to the Indemnified Party), in each case at the Indemnifying Party’s expense. Notwithstanding the foregoing, the Indemnifying Party shall have the right to assume the defense only if (i) the Third Party Claim seeks (and continues to seek) solely monetary damages, (ii) the reasonably expected amount of Damages with respect to such Third Party Claim would not exceed the maximum indemnification obligation of the Indemnifying Party with respect to such Third Party Claim. All Losses incurred , (iii) the Indemnifying Party agrees in writing to be fully responsible for all Damages (subject to the limits in this Article VIII) relating to such Third Party Claim, (iv) the Third Party Claim does not relate to or arise in connection with any criminal or quasi criminal proceeding, allegation or investigation, and (v) such Third Party Claim does not relate to or involve a claim asserted directly by or on behalf of a Person that is a customer, supplier or employee of the Company (the conditions set forth in clauses (i) through (v) are, collectively, the “Litigation Conditions”.
(c) In the event that the Indemnifying Party assumes the defense of any Third Party Claim in accordance with the provisions of this Section 8.06:
(i) the Indemnified Party prior shall have the right, at its own cost and expense, to participate in the defense of any assumption Third Party Claim subject to the Indemnifying Party’s right to control the defense thereof; provided, however, if the named parties to the Legal Proceeding include both the Indemnifying Party and the Indemnified Party and there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have one counsel for the Indemnifying Party and the Indemnified Party, the expense of separate counsel for such Indemnified Party shall be paid by the Indemnifying Party;
(ii) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Third Party Claim, if (A) the settlement does not unconditionally release the Indemnified Party and its Affiliates from all Liabilities with respect to such Third Party Claim, (B) the settlement imposes injunctive or other equitable relief against, or requires any payment by, the Indemnified Party or any of its Affiliates, (C) the settlement contains any statement as to, or an admission of fault, culpability or a failure to act by or on behalf of the Indemnified Party, or (D) the settlement may reasonably be expected to have a material adverse effect on the business of the Indemnified Party; and
(iii) if (A) any of the Litigation Conditions ceases to be met or (B) the Indemnifying Party fails to diligently defend such Third Party Claim, the Indemnified Party may assume the defense of such Third Party Claim, and the Indemnifying Party will be liable for all costs and expenses paid or incurred in connection with such defense, subject to the limits in this Article VIII.
(d) If the Indemnifying Party does not assume the defense of a Third Party Claim will be reimbursed by in accordance with this Section 8.06, the Indemnifying Indemnified Party may defend, and shall have the right to the extent settle, such Third Party Claim, and, only if the Indemnifying Party is required to indemnify and hold harmless make any payment, with the Indemnified Party from, against and in respect prior written consent of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified (which shall not be unreasonably withheld, conditioned or delayed).
(e) Each Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entityshall cooperate, and cause its Affiliates to employ counsel separate from the counsel employed by cooperate, at the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity’s expense, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as a result of the Indemnified Party's election may be reasonably requested in connection therewith, subject to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimattorney-client privilege.
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Third Party Claims. (a) The In the event that the Purchaser Indemnified Party agrees is entitled, or is seeking to give assert rights, to indemnification under this Article VIII relating to a claim by another Person, then the Indemnifying Purchaser Indemnified Party will deliver a Claim Notice to the Shareholder Representative and will include in such Claim Notice (i) notice in writing of the assertion commencement of any Proceeding relating to such claim within 30 days after the Purchaser Indemnified Party has received written notice of the commencement of such Proceeding and (ii) the facts constituting the basis for such Proceeding and the amount of the damages claimed by the other Person, in each case to the extent known to the Purchaser Indemnified Party. Notwithstanding the foregoing, no delay or demand made bydeficiency on the part of the Purchaser Indemnified Party in so notifying the Shareholder Representative will relieve the Shareholders of any Liability or obligation under this Agreement except to the extent the Shareholders have suffered actual Losses directly caused by the delay or other deficiency.
(b) Within 30 days after the Purchaser Indemnified Party’s delivery of notice of the commencement of such Proceeding under this Section 8.6, the Shareholders may assume control of the defense of such Proceeding by giving to the Purchaser Indemnified Party written notice of the intention to assume such defense, but if and only if:
(i) such written notice acknowledges to the Purchaser Indemnified Party that any Losses that may be assessed in connection with such Proceeding constitute Losses for which the Purchaser Indemnified Party will be indemnified pursuant to this Article VIII without contest or objection and that the Shareholders will advance all expenses and costs of defense;
(ii) such written notice identifies counsel proposed for the defense of such Proceeding and such counsel is reasonably satisfactory to the Purchaser Indemnified Party;
(iii) such written notice is accompanied by evidence satisfactory to the Purchaser Indemnified Party that Shareholders have and will have sufficient financial resources to fund on a current basis the cost of such defense and paying all Losses that may arise under the claim; and
(iv) the Purchaser Indemnified Party grants the Shareholders permission to assume the defense of such Proceeding.
(c) If the Shareholders do not, or any other Action instituted byare not able to, any Person not a assume or maintain control of such defense in compliance with Section 8.6(b), the Purchaser Indemnified Party will have the right to this Agreement (a “Third control such defense. If the Purchaser Indemnified Party Claim”) in respect of which indemnity may be sought under Section 7.1 controls the defense, the Shareholders agree, in accordance with the notice procedures set forth applicable limitations in Section 7.28.3, to pay such Purchaser Indemnified Party promptly upon demand from time to time all reasonable attorneys’ fees and other costs and expenses of defense, with the Escrow Fund (to the extent existing and sufficient) serving as the initial source of recovery for such Purchaser Indemnified Party. The party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense. The party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such suit or proceeding and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding.
(d) The Purchaser Indemnified Party will not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the Shareholder Representative, which will not be unreasonably withheld, delayed or conditioned; provided, however, that any delay in delivering any Indemnification Notice the consent of the Shareholder Representative will not affect be required if such settlement or judgment involves (i) a remedy other than monetary damages or (ii) a Specified Claim. Notwithstanding the indemnification provided hereunderforgoing, except the Purchaser Indemnified Party may, but shall not be obligated to, request the consent of the Shareholder Representative to settlements of Specified Claims, and if such consent is obtained, the Shareholders irrevocably agree that the amount of such settlement is a Loss for purposes of this Article VIII. However, if such consent is not requested or is requested and not obtained, the Shareholders shall be permitted to contest all Loss claims based on settlements of Specified Claims in accordance with this Article VIII.
(e) If the Shareholders assume or maintain control of such defense in compliance with Section 8.6(b), (i) they may access the funds in the Escrow Fund (to the extent existing and sufficient) to pay all reasonable attorneys’ fees and other costs and expenses of such defense in accordance with the Indemnifying applicable limitations in Section 8.3 and (ii) the Shareholder Representative will not agree to any compromise or settlement of, or the entry of any judgment arising from, any such Proceeding without the prior written consent of the Purchaser Indemnified Party, which consent the Purchaser Indemnified Party will not unreasonably withhold or delay. The Purchaser Indemnified Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice no Liability with respect to a Third Party Claimany compromise or settlement of, or the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement entry of any CIE Claim; provided that in such eventjudgment arising from, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)Proceeding effected without its consent.
(bf) Notwithstanding the other provisions of this Article VIII, if a Person not a party to this Agreement asserts that a Purchaser Indemnified Party is liable to such Person for an obligation for which such Purchaser Indemnified Party may be entitled to indemnification pursuant to this Article VIII, and such Purchaser Indemnified Party determines that it has a business reason to fulfill such obligation, then (i) With respect to a Third Party Claim, the Indemnifying such Purchaser Indemnified Party will be entitled to participate in satisfy such obligation, without notice to or consent from the defense thereof andShareholders, if it so elects, to assume the defense thereof, unless (ii) such Third Party Claim is reasonably likely to materially and adversely affect the Purchaser Indemnified Party and/or may subsequently make a claim for indemnification in accordance with the Indemnified Party's Affiliates other than as a result provisions of monetary damages. Unless the this Article VIII and (iii) such Purchaser Indemnified Party will have notified be reimbursed, in accordance with the Indemnifying Party provisions of this Article VIII, for any such Losses for which it is entitled to indemnification pursuant to this Article VIII, subject to the right of the existence Shareholders to dispute such Purchaser Indemnified Party’s entitlement to indemnification.
(g) Notwithstanding the provisions of the condition set forth in the preceding sentenceSection 11.8, the Indemnifying Party will have thirty (30) days (or such lesser number Shareholder Representative consents to the non-exclusive jurisdiction of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or in which a Proceeding is brought by another Person against any regulatory inquiry or investigation) from receipt Purchaser Indemnified Party for purposes of the Indemnification Notice any claim that a Purchaser Indemnified Party may have under this Agreement with respect to the Proceeding or the matters alleged therein. The Shareholder Representative agrees that process may be served on them with respect to such a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate claim anywhere in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderworld.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
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Third Party Claims. (a) The Indemnified In the event that any legal proceedings shall be instituted or any claim or demand shall be asserted by any person (a "Third-Party agrees to give Claim") in respect of which indemnification may be sought by any party or parties from any other party or parties under the Indemnifying Party provisions of this Article VII, the party or parties seeking indemnification (collectively, the "Indemnitee") shall cause written notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Third-Party to this Agreement (a “Third Party Claim”) in respect Claim of which it has knowledge that is covered by this indemnity may to be forwarded promptly to the party or parties from which indemnification is sought under Section 7.1 in accordance with (collectively, the "Indemnitor"); provided that the failure of an Indemnitee to give timely notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will shall not affect the rights to indemnification provided hereunder, hereunder except to the extent that the Indemnifying Party will Indemnitor has been damaged by such failure. The Indemnitor shall have been materially prejudiced as a result the right, at its option and at its own expense, to be represented by counsel of such delay. From its choice and after to participate in the delivery of a Indemnification Notice with respect to a Third Party Claimdefense, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and negotiation and/or settlement of any CIE Third-Party Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third In connection with any Third-Party Claim, the Indemnifying Party will be entitled to participate in Indemnitor, at the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially sole cost and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party expense of the existence of Indemnitor, may, upon written notice to the condition set forth in the preceding sentenceIndemnitee, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of any such Third Third-Party Claim. All Losses incurred by Claim if (i) the Indemnified Party prior to any assumption by Indemnitor acknowledges in writing the Indemnifying Party obligation of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required Indemnitor to indemnify and hold harmless in accordance with the Indemnified Party from, against and in terms of this Agreement the Indemnitee with respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Third-Party Claim, it will (ii) the Third-Party Claim seeks monetary damages solely and (iii) an adverse resolution of the Third-Party Claim would not have a material adverse effect on the right to so defend at goodwill or reputation of the Buyer or its expenseaffiliates; PROVIDED, with counsel selected by HOWEVER, that the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will Indemnitee may participate in any such defense proceeding with counsel of its choice and at its own expense unless (A) expense; and PROVIDED FURTHER, HOWEVER, that if the Indemnifying Party Indemnitor assumes control of such defense and the Indemnified Party are both named parties Indemnitee reasonably concludes that the Indemnitor and the Indemnitee have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the proceedings Indemnitee shall be considered "Losses" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties defense thereof and shall consider in good faith recommendations made by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent other party with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderthereto.
(c) The Indemnitee shall not agree to any settlement of such action, suit or proceeding without the prior written consent of the Indemnitor, which shall not be unreasonably withheld, unless the Indemnitee waives any right to indemnity therefor by the Indemnitor. Notwithstanding the foregoing, if a customer or a supplier of the Seller asserts that the Buyer is liable to such customer or supplier for a monetary or other obligation which may constitute or result in Losses for which the Buyer may be entitled to indemnification pursuant to this Article VII and the Buyer reasonably determines that it has a valid business reason to fulfill such obligations, then (i) the Buyer shall be entitled to satisfy such obligation without prior notice to or consent from the Seller, (ii) In the event Buyer may make a claim for indemnification pursuant to this Article VII and (iii) the Indemnifying Party Buyer shall be reimbursed, in accordance with the provisions of this Article VII, for any such Losses for which it is entitled to indemnification pursuant to the provisions of this Article VII, PROVIDED, HOWEVER, that if the Buyer makes a claim for indemnification in accordance with this sentence the Seller shall not be deemed to have waived any defense to such claim by the Buyer, notwithstanding the Buyer's prior satisfaction of the obligation for which indemnification is sought, and it shall not be a defense to the Buyer's claim for indemnification that the Buyer has satisfied the obligation for which indemnification is sought.
(xd) elects not After final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the expiration of the time in which to defend appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party against Indemnitee and the Indemnitor shall have arrived at a Third Party Claimmutually binding agreement with respect to each separate matter indemnified by the Indemnitor, whether by not giving the Indemnified Party timely Indemnitee shall forward to the Indemnitor notice of its desire any sums due and owing by the Indemnitor with respect to so defend or otherwise; (y) is not entitled to defend such matter and the Third Party Claim as a result Indemnitor shall pay all of the Indemnified Party's election sums so owing to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) Indemnitee by check within 10 days after assuming the defense of a Third Party Claim, fails to conduct the defense date of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimnotice.
Appears in 1 contract
Third Party Claims. (a) The If a claim by a third party is made against a Parent Indemnified Party agrees or a Buyer Indemnified Party (collectively, an “Indemnified Party”), and if such Indemnified Party intends to give seek indemnity with respect thereto under this Article 7, such Indemnified Party shall promptly notify the Indemnifying indemnifying party of such claims. Such notification shall be given within ten (10) days after receipt by the Indemnified Party of notice of such suit or proceeding; shall be accompanied by reasonable supporting documentation submitted by such third party (to the extent then in writing the possession of the assertion Indemnified Party); and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such suit or proceeding and the amount of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2claimed damages; provided, however, that no delay or deficiency on the part of the Indemnified Party in so notifying the indemnifying party shall relieve the indemnifying party of any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, liability or obligation hereunder except to the extent of any liability caused by or arising out of such failure, except and only to the Indemnifying Party will have been materially extent where the indemnifying party is prejudiced as a result of by such delay. From and Within twenty (20) days after the delivery of a Indemnification Notice with respect to a Third Party Claimsuch notification, the Indemnified Party will deliver indemnifying party may, upon written notice thereof to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies assume control of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred suit or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, proceeding with counsel selected by the Indemnifying Party that is reasonably acceptable satisfactory to the Indemnified Party. Once ; provided, however, that (i) the Indemnifying Party has duly assumed the defense indemnifying party may only assume control of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability if it acknowledges in writing to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those any damages that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by assessed against the Indemnified Party in connection with such participation will suit or proceeding constitute “Costs” for which the Indemnified Party shall be borne indemnified pursuant to this Article 7, and (ii) the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which any relief other than monetary damages is sought against the Indemnified Party. In addition, notwithstanding anything to the contrary in the foregoing, in the event that an Indemnified Party in good faith determines that the conduct of the defense of any claim, suit or proceeding or any proposed settlement of any such claim, suit or proceeding by the Indemnifying indemnifying party might be expected to adversely affect the Indemnified Party’s Tax liability or the ability of the Indemnified Party to conduct its business (including relationships with Governmental Authorities, customers, suppliers or other Persons with whom the Indemnified Party conducts business), the Indemnified Party shall have the right at all times to take over and assume control over the defense, settlement or negotiations relating to any such claim, suit or proceeding at the sole cost of the indemnifying party. Each If the indemnifying party does not so assume control of such defense, the Indemnified Party will shall control such defense. The party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense; provided, however, that if the indemnifying party assumes control of such defense and the Indemnified Party reasonably concludes that the indemnifying party and the Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the Indemnified Party shall be considered “Costs” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-controlling Party reasonably advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or prosecution of a Third Party Claimproceeding. Such cooperation will include The indemnifying party shall not, except with the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result consent of the Indemnified Party's election , enter into any settlement that does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to defend the Third Party Claim as provided in Section 7.3(b)(i); all Indemnified Parties of unconditional release from all liability with respect to such claim or (z) after assuming the defense consent to entry of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the any judgment. The Indemnified Party shall not agree to any settlement of, or the effect that entry of any judgment arising from, any such suit or proceeding without the Indemnifying Party has so failedprior written consent of the indemnifying party, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will which shall not be adversely affected by assuming the defense of such Third Party Claimunreasonably withheld or delayed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sirva Inc)
Third Party Claims. If any investigation, action or other proceeding (each a "Proceeding") is initiated against any Seller Indemnitee or Buyer Indemnitee (each an "Indemnitee") by any third party and such Indemnitee intends to seek indemnification from Sellers and the Shareholder or Buyer (each an "Indemnitor"), as applicable, under this Article on account of its involvement in such Proceeding, then such Indemnitee will give prompt notice to the applicable Indemnitor of such Proceeding; provided, that the failure to so notify such Indemnitor will not relieve such Indemnitor of its obligations under this Article, but will reduce such obligations by the amount of damages or increased costs and expenses attributable to such failure to give notice. Upon receipt of such notice, such Indemnitor will diligently defend against such Proceeding on behalf of such Indemnitee at its own expense using counsel reasonably acceptable to such Indemnitee; provided, that (a) The Indemnified Party agrees if such Indemnitor fails or refuses to give the Indemnifying Party notice in writing of the assertion of any claim or demand made byconduct such defense, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) such Indemnitee has been advised by counsel that it has material defenses available to it which are not available to such Indemnitor and which counsel for such Indemnitor refuses to raise, or that its interests in such Proceeding are adverse to such Indemnitor's interests (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless such Indemnitor's and Indemnitee's interests being adverse under this Agreement), (c) equitable remedies are being sought against the Indemnified Party will have notified Indemnitee in such Proceeding or (d) the Indemnifying Party liability of the existence of Indemnitor(s) with respect to such Proceeding, due to the condition limitations set forth in the preceding sentencethis Article, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt is less than 50% of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of amount being sought in such Third Party ClaimProceeding, then such Indemnitee may defend against such Proceeding at such Indemnitor's expense. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred Such Indemnitor or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panelIndemnitee, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties may participate in any Proceeding being defended against by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedother at its own expense, and in will not settle any Proceeding without the case prior consent of (A) the other, which consent will not be unreasonably withheld; provided, that the consent of an Indemnitor is not required if such Indemnitor failed or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not refused to defend the Indemnified Party against a Third Party Claim, whether by not giving Indemnitee in the Indemnified Party timely notice Proceeding that is being settled. Such Indemnitor and Indemnitee will cooperate with each other in the conduct of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of any such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimProceeding.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party Promptly upon receipt of notice in writing of the assertion of any claim claim, demand or demand made byassessment or the commencement of any suit, action or any other Action instituted by, any Person not a Party proceeding with respect to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under pursuant to this Section 7.1 11, Buyer or the appropriate member of Buyer Indemnified Group shall notify in accordance with writing, if possible, within sufficient time to respond to such claim or answer or otherwise plea in such action, the notice procedures set forth in Section 7.2; providedparty(ies) from whom indemnification is sought (individually or collectively, howeveras applicable, that the "Seller Group-Indemnitor"). In case any delay in delivering claim, demand or assessment shall be asserted, or suit, action or proceeding is commenced against any Indemnification Notice will not affect member of Buyer Indemnified Group, the indemnification provided hereunderSeller Group-Indemnitor shall be entitled, except at the Seller Group-Indemnitor's expense, to participate therein, and, to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, that it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so electsor they may desire, to assume the defense defense, conduct or settlement thereof, unless such Third Party Claim is reasonably likely at its or their own expense, with counsel satisfactory to materially Buyer (whose consent to the selection of counsel shall not be unreasonably withheld or delayed), provided that the Seller Group-Indemnitor confirms to Buyer and adversely affect the member of Buyer Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentenceGroup, the Indemnifying Party will have thirty within five (305) days (or such lesser number of days set forth in receiving notice from the Indemnification Notice as may be required by any Governmental Entitymember of Buyer Indemnified Group, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt that it is a claim to which the rights of the Indemnification Notice indemnification apply with respect to a Third Party Claim (the “Defense Notice Period”) to notify the applicable member of Buyer Indemnified Party of its election to assume the defense of such Third Party ClaimGroup. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will The Seller Group-Indemnitor shall have the right to settle or compromise monetary claims; however, as to any other claim, the Seller Group-Indemnitor shall first obtain the prior written consent from the member of Buyer Indemnified Group, which consent shall be exercised in the member of Buyer Indemnified Group's sole discretion. After notice from the Seller Group-Indemnitor to Buyer and the appropriate member of Buyer Indemnified Group of the Seller Group-Indemnitor's intent to so defend assume the defense, conduct, settlement or compromise of such action, the Seller Group-Indemnitor shall not be liable to the member of Buyer Indemnified Group for any legal or other expenses (including, without limitation, settlement costs) subsequently incurred by the member of Buyer Indemnified Group in connection with the defense, conduct or settlement of such action by the member of Buyer Indemnified Group while the Seller Group-Indemnitor is diligently defending, conducting, settling or compromising such action. The Seller Group-Indemnitor shall keep Buyer and the applicable member of Buyer Indemnified Group apprised of the status of the suit, action or proceeding and shall make the Seller Group- Indemnitor's counsel available to Buyer and the member of Buyer Indemnified Group, at its the Seller Group-Indemnitor's expense, upon the request of Buyer and/or the member of Buyer Indemnified Group. Buyer and Buyer Indemnified Group shall cooperate with the Seller Group-Indemnitor in connection with any such claim and shall make personnel, books and records and other information relevant to the claim available to the Seller Group-Indemnitor to the extent that such personnel, books and records and other information are in the possession and/or control of Buyer or the member of Buyer Indemnified Group. If the Seller Group-Indemnitor decides not to participate or does not respond within five (5) days of receiving notice from the member of Buyer Indemnified Group, then the member of Buyer Indemnified Group shall be entitled, at the Seller Group-Indemnitor's expense, to defend, conduct, settle or compromise such matter with counsel selected by the Indemnifying Party that is reasonably acceptable to the member of Buyer Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderGroup.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Bill of Sale and Asset Purchase Agreement (Park Pharmacy Corp)
Third Party Claims. (a) The Indemnified In order for a party (the "Indemnitee") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of, or involving a claim or demand made by any Person against the Indemnitee (a "Third-Party agrees to give Claim"), such Indemnitee must notify the Indemnifying Party notice party from whom indemnification hereunder is sought (the "Indemnitor") in writing of the assertion of any Third-Party Claim no later than thirty (30) days after such claim or demand made byis first asserted (a "Third-Party Claim Notice"). A Third-Party Claim Notice shall state in reasonable detail the amount or estimated amount of such claim, and shall identify the specific basis (or any other Action instituted bybases) for such claim, any Person not a Party to including the representations, warranties or covenants in this Agreement (alleged to have been breached. Failure to give a “Third Third-Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Claim Notice will shall not affect the indemnification provided hereunder, hereunder except to the extent the Indemnifying Party will Indemnitor shall have been materially actually prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimThereafter, the Indemnified Party will Indemnitee shall deliver to the Indemnifying PartyIndemnitor, within ten (10) Business Days after the Indemnified Party's receipt thereofwithout undue delay, true, correct and complete copies of all material notices and documents (including court papers) papers received by the Indemnified Party Indemnitee) relating to the Third Party Claim. Any CIE Claim shall be considered a Third Third-Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if so long as any such exposure is created disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that results may be available to the Indemnitee in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)connection therewith.
(b) If a Third-Party Claim is made against an Indemnitee, the Indemnitor shall be entitled to participate, at its expense, in the defense thereof. Notwithstanding the foregoing, if (i) With respect to the Indemnification Threshold has been exceeded, (ii) no claim for injunctive relief is being made against Indemnitee, and (iii) it is reasonably likely that Indemnitee will not suffer a Third Party ClaimLoss in excess of Indemnitor’s indemnification obligation hereunder, the Indemnifying Party will be entitled Indemnitor may elect to assume and control the defense thereof with counsel selected by the Indemnitor that is reasonably acceptable to Indemnitee. If the Indemnitor assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any Indemnitor, it being understood that the Indemnitor shall control such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and defense; provided, that, Indemnitee’s expenses of counsel shall be an indemnified Loss for purposes of this Article 9 if such counsel reasonably concludes that a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual conflict or potential differing interests conflict exists between them or Indemnitee and Indemnitor that would make separate representation advisable. If the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party Indemnitor so assumes the defense of a Third any Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B)Claim, all such expenses incurred by of the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will indemnified parties shall reasonably cooperate with the Indemnitor in the defense or prosecution of a Third Party Claimthereof. Such cooperation will include shall include, at the expense of the Indemnitor, the retention and, and (upon the Indemnifying Party's Indemnitor’s request, ) the provision to the Indemnifying Party Indemnitor of records and information which are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In . If the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming Indemnitor has assumed the defense of a Third Third-Party Claim, fails to conduct (i) the defense of Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the Indemnitor’s prior written consent (which consent shall not be unreasonably withheld or delayed); (ii) the Indemnitee shall agree to any settlement, compromise or discharge of a Third-Party Claim which the Indemnitor may recommend and which by its terms releases the Indemnitee from any liability in a reasonably diligent manner within twenty connection with such Third-Party Claim without cost or expense and without any admission of violation, injunction or agreement to take or restrain from taking any action; and (20iii) days after receiving the Indemnitor shall not, without the written notice from consent of the Indemnified Party Indemnitee, enter into any settlement, compromise or discharge or consent to the effect that entry of any judgment which imposes any expense, obligation or restriction upon the Indemnifying Party has so failedIndemnitee or requires the Indemnitee to admit or acknowledge to any fact or event, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense including any violation of such Third Party ClaimLaw.
Appears in 1 contract
Third Party Claims. (a) The If any Action is instituted by a third party against an Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by(each, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) with respect to which an Indemnified Party intends to seek indemnification for any Losses under this Article 9, then such Indemnified Party shall give written notice to each Indemnifying Party promptly, and in any event no later than thirty (30) days after it has received a written assertion of liability from the third party and shall not make any admissions or acceptances; provided, that no delay or failure on the part of the Indemnified Party in so notifying an Indemnifying Party shall relieve such Indemnifying Party of any liability or obligation hereunder except to the extent such Indemnifying Party is actually prejudiced by such failure. The Indemnified Party shall supply the Indemnifying Party with such information and documents as it has in its possession regarding such claim, together with all pertinent information in its possession regarding the amount of the Loss that it asserts it has sustained or incurred, and will permit the Indemnifying Party to inspect such other records and books in the possession of the Indemnified Party and relating to the Third Party Claim and asserted Loss as the Indemnifying Party shall reasonably request during normal business hours and on prior written request, subject to the provisions of Section 6.12 hereof.
(b) Except as otherwise provided herein, the Indemnifying Party shall have the right to conduct and control, at its own expense, through counsel of its choosing (which counsel shall be reasonably acceptable to the Indemnified Party), the defense of a Third Party Claim so long as (x) the Indemnifying Party notifies the Indemnified Party in writing that it has agreed to indemnify the Indemnified Party (subject to the limitations on indemnification set forth herein) for any and all Losses arising out of or resulting from the Third Party Claim of which it is assuming the right to conduct and control the defense within twenty-five (25) Business Days of its receipt of the initial notice of the Third Party Claim; provided, however, that the Indemnified Party may participate at its own expense, with counsel of its choosing, in the defense of such third-party action or suit although such action or suit shall be controlled by the Indemnifying Party; provided, further, that that notwithstanding the foregoing, (1) if the Indemnifying Party does not provide such notification to the Indemnified Party within such twenty-five (25) Business Day period, (2) the Indemnifying Party fails to conduct such defense in good faith or (3) the Third Party Claim is in respect of a matter involving criminal liability or the third party is seeking non-monetary relief, then in any such case, the Indemnified Party shall have the right to conduct and control the defense of such Third Party Claim, with counsel of its choosing (which counsel shall be reasonably acceptable to the Indemnifying Party) and the Indemnifying Party shall be liable for all reasonable fees and expenses of the counsel employed by the Indemnified Party and other reasonable expenses, court costs and filing fees with respect to such defense. The Indemnifying Party shall pay the reasonable fees and expenses of the Indemnified Party’s counsel if there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnified Party and the Indemnifying Party. The party controlling the defense of such Third Party Claim shall in any event defend any such matters vigorously and in good faith.
(c) The Indemnifying Party shall not agree to the settlement of, or the entry of any judgment arising from, any Third Party Claim without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Claim involving any admission of wrongdoing by, criminal liability of, or involving the imposition of equitable relief against, the Indemnified Party, or resulting in monetary damages in excess of the amount of Losses for which the Indemnifying Party is liable under Section 9.4. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, any compromise or settlement of a Third Party Claim under this Section 9.3 shall include, as an unconditional term thereof, the giving by the claimant in question to the Indemnifying Party and the Indemnified Party of a release of all liabilities in respect of such claims.
(d) All of the Parties shall reasonably cooperate in the defense or prosecution of any Third Party Claim in respect of which indemnity may be sought under Section 7.1 in accordance with hereunder and each of Buyer and the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as Company (or a result duly authorized representative of such delay. From Party) shall (and after shall cause the delivery of a Indemnification Notice with respect to a Third Party ClaimGroup Companies to) furnish such records, the Indemnified Party will deliver to the Indemnifying Partyinformation and testimony, within ten (10) Business Days after the Indemnified Party's receipt thereofand attend such conferences, truediscovery proceedings, correct hearings, trials and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3appeals, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party requested in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereundertherewith.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Walter Investment Management Corp)
Third Party Claims. (ai) The In the event that any Action is instituted, or that any Third Party Claim is asserted, the Indemnified Party agrees to give Person seeking indemnification for any related Loss (including a Parent Indemnified Person seeking indemnification for any related loss through an Offset Right) shall notify the Indemnifying Party notice in writing of the assertion of any such Action or claim or demand made bypromptly after receiving notice thereof (each, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party ClaimIndemnification Claim Notice”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2); provided, that, as applicable, a Parent Indemnified Person shall promptly notify the Indemnifying Party and the Holders’ Representative of any such Action or claim; provided further, however, that no delay on the part of the Indemnified Person in giving any such notice shall relieve an Indemnifying Party of any indemnification obligations unless, and only to the extent that, such Indemnifying Party is actually and materially prejudiced by such delay and then only to the extent of such prejudice. Subject to the provisions of this Section 8.4(a)(i), and assuming the Indemnified Person does not have the right to elect or does not choose to elect in delivering its Third Party Indemnification Claim Notice to assume the defense of the Third Party Claim in accordance with Section 8.4(a)(v), the Indemnifying Party shall be entitled at its own expense to conduct and control the defense of such Third Party Claim on behalf of the Indemnified Person through counsel chosen by the Indemnifying Party and reasonably acceptable to the Indemnified Person if the Indemnifying Party notifies the Indemnified Person in writing within thirty (30) days of its intent to do so and confirms that the Indemnifying Party shall be obligated to indemnify the Indemnified Person against all resulting Losses in accordance with (and subject to the limitations of) this Agreement. If the Indemnifying Party does not elect within thirty (30) days to defend any Indemnification Notice will not affect Third Party Claim, the Indemnified Person may defend such Third Party Claim as described below in Section 8.4(a)(v). For the avoidance of doubt, Parent acknowledges that if a Third Party Claim is asserted against Parent and such claim alleges both (y) facts or circumstances giving rise to indemnifiable Losses under this Agreement and (z) wrongful conduct by Parent, then in such case any Parent Indemnified Person shall only be entitled to recover Losses arising under subclause (y).
(ii) If the Indemnifying Party elects to defend any Third Party Claim:
(A) the Indemnifying Party shall use its commercially reasonable efforts to defend such Third Party Claim;
(B) the Indemnified Person, prior to the period in which the Indemnifying Party assumes the defense of such matter, may take such reasonable actions to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the Indemnified Person’s rights to defense and indemnification provided hereunderpursuant to this Agreement and without such actions being determinative of the amount of any indemnifiable Losses, except to the extent the Indemnifying Party will have been Party’s ability to defend such action is actually and materially prejudiced as a result by such actions; and
(C) the Indemnified Person may participate in the defense of such delay. From Third Party Claim with separate counsel at its own expense or, if so requested by the Indemnifying Party or, if in the reasonable opinion of counsel to the Indemnified Person, a conflict or potential conflict exists between the Indemnified Person and after the delivery Indemnifying Party that would make such separate representation advisable, at the reasonable expense of the Indemnifying Party.
(iii) In connection with this Section 8.4(a)(iii), the Parties agree to:
(A) cooperate with each other in connection with the defense, negotiation or settlement of any such Third Party Claim;
(B) make available witnesses in a Indemnification Notice timely manner to provide testimony through declarations, affidavits, depositions, or at hearing or trial and to work with each other in preparation for such events consistent with deadlines dictated by the particular Third Party Claim;
(C) preserve all documents and things required by litigation hold orders pending with respect to particular Third Party Claims; and
(D) provide such documents and things to each other, consistent with deadlines dictated by a particular matter, as required by legal procedure or court order, or if reasonably requested by another Party hereto; provided that such cooperation referenced in clauses (A) through (D) shall not be required if it would reasonably be expected to result in a waiver of any attorney-client, work product or other privilege, and provided further that the Parties shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law), and to cause all communications among Employees, counsel and others representing any party to a Third Party ClaimClaim to be made so as to preserve any applicable attorney-client or work-product privileges.
(iv) Except as permitted in this Section 8.4(a)(iv), the Indemnified Indemnifying Party will deliver to shall not, without the Indemnifying Party, within ten (10) Business Days after written consent of the Indemnified Party's receipt thereofPerson(s) (such consent not to be unreasonably conditioned, truewithheld or delayed), correct and complete copies settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment (each a “Settlement”); provided, however, that an Indemnified Person’s written consent shall not be required if (x) the claimant provides such Indemnified Person an unqualified release from all material notices and documents (including court papers) received by the Indemnified Party relating to liability in respect of the Third Party Claim, (y) such Settlement does not impose any additional liabilities or obligations on the Indemnified Person and (z) with respect to any non-monetary provision of such Settlement, such provisions could not have, or be reasonably expected to have, any adverse effect on the business, assets, financial condition or results of operations of the Indemnified Person and its Subsidiaries, if any. Any CIE Claim Settlement or compromise that does not comply with the preceding sentence shall not be considered determinative of the amount of Losses with respect to any related claims for indemnification pursuant to this ARTICLE VIII. The costs incurred by Holders’ Representative pursuant to participating in the defense of any Third Party Claims shall constitute Holders’ Representative Losses.
(v) Notwithstanding anything in this Agreement to the contrary, if (w) a Third Party Claim for purposes seeks relief other than the payment of monetary damages, (x) the subject matter of a Third Party Claim relates to the ongoing business of the procedures set forth in this Section 7.3Indemnified Person or its Affiliate, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a which Third Party Claim, if decided against the Indemnifying Party will be entitled to participate in the defense thereof andIndemnified Person, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or ongoing business of the Indemnified Party's Affiliates other than as a result of monetary damages. Unless Person, (y) the claim for indemnification relates to or arises in connection with any criminal proceeding, action or indictment, or (z) the Indemnified Party will have notified Person reasonably concludes that the Indemnifying Party amount of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (and associated defense costs shall exceed the “Defense Notice Period”limits on the Indemnifying Party’s obligations under Section 8.2(b) or the Indemnifying Party’s financial resources available to notify defend against the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by , then, in each such case, the Indemnified Party prior Person alone shall be entitled to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from defend such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it Person elects to exercise such right to defend such Third Party Claim, it will have then the right to so defend at its expense, with counsel selected by Indemnified Person shall notify the Indemnifying Party that is reasonably acceptable to of such election within thirty (30) days of the Indemnified Party. Once the Indemnifying Party has duly assumed the defense later of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) receiving the Indemnifying applicable Third Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof Indemnification Claim Notice or (B) the occurrence of the event giving rise to the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed Person’s right to diligently pursue a Third Party Claim it has assumedmake such election pursuant to clause (w), and in the case of (Ax), (y) or (Bz) of this Section 8.4(a)(v). In such event, all such expenses incurred by the Indemnified Party in connection with such participation will Person shall instead have the right to be borne represented by counsel of its choice (of which it shall notify the Indemnifying Party. Each Party will reasonably cooperate in ) at the defense or prosecution of a Indemnifying Party’s reasonable expense and to defend such Third Party Claim. Such cooperation will include If the retention and, upon the Indemnifying Party's request, the provision Indemnified Person elects to the Indemnifying Party of records and information which are reasonably relevant to defend any such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
then (ii1) In the event the Indemnifying Party (x) elects not Indemnified Person shall use its commercially reasonable efforts to defend the Indemnified Party against a such Third Party Claim, whether by not giving conduct such defense in a good faith and reasonably diligent manner, keep the Indemnified Indemnifying Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result reasonably informed of the Indemnified Party's election status of such defense, and use commercially reasonable efforts to defend cooperate with the Third Indemnifying Party Claim as provided with respect to such defense during the course of such defense, (2) the Indemnifying Party may participate, at its own expense, in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party and shall be entitled to the effect that the Indemnifying Party has so failedreceive copies of complaints, the Indemnified Party will have the right but not the obligation pleadings, notices and material communications with respect to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will and (3) the Indemnified Person shall not, without the written consent of the Indemnifying Person (such consent not to be adversely affected by assuming the defense unreasonably withheld, conditioned or delay), enter into any Settlement of such Third Party Claim. If the Indemnified Person does not elect to defend such Third Party Claim, then the Indemnifying Party shall then have the right to defend such Third Party Claim as described above in Section 8.4(a)(i). 84
(vi) Notwithstanding the foregoing, any Third Party Claims in respect of Taxes shall be governed by Section 5.8(c) rather than this Section 8.4(a). To the extent that the provisions of this Section 8.4(a) conflict with the provisions of Section 5.8(c) or Section 5.8(i), Section 5.8(c) or Section 5.8(i) shall control, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Invitae Corp)
Third Party Claims. (a) The In the event that the Purchaser Indemnified Party agrees is entitled, or is seeking to give assert rights, to indemnification under this Article VIII relating to a claim by another Person, then the Indemnifying Purchaser Indemnified Party will deliver a Claim Notice to the Shareholder Representative and will include in such Claim Notice (i) notice in writing of the assertion commencement of any Proceeding relating to such claim within 30 days after the Purchaser Indemnified Party has received written notice of the commencement of such Proceeding and (ii) the facts constituting the basis for such Proceeding and the amount of the damages claimed by the other Person, in each case to the extent known to the Purchaser Indemnified Party. Notwithstanding the foregoing, no delay or demand made bydeficiency on the part of the Purchaser Indemnified Party in so notifying the Shareholder Representative will relieve the Shareholders of any Liability or obligation under this Agreement except to the extent the Shareholders have suffered actual Losses directly caused by the delay or other deficiency.
(b) Within 30 days after the Purchaser Indemnified Party’s delivery of notice of the commencement of such Proceeding under this Section 8.6, the Shareholders may assume control of the defense of such Proceeding by giving to the Purchaser Indemnified Party written notice of the intention to assume such defense, but if and only if:
(i) such written notice acknowledges to the Purchaser Indemnified Party that any Losses that may be assessed in connection with such Proceeding constitute Losses for which the Purchaser Indemnified Party will be indemnified pursuant to this Article VIII without contest or objection and that the Shareholders will advance all expenses and costs of defense;
(ii) such written notice identifies counsel proposed for the defense of such Proceeding and such counsel is reasonably satisfactory to the Purchaser Indemnified Party;
(iii) such written notice is accompanied by evidence satisfactory to the Purchaser Indemnified Party that Shareholders have and will have sufficient financial resources to fund on a current basis the cost of such defense and paying all Losses that may arise under the claim; and
(iv) the Purchaser Indemnified Party grants the Shareholders permission to assume the defense of such Proceeding.
(c) If the Shareholders do not, or any other Action instituted byare not able to, any Person not a assume or maintain control of such defense in compliance with Section 8.6(b), the Purchaser Indemnified Party will have the right to this Agreement (a “Third control such defense. If the Purchaser Indemnified Party Claim”) in respect of which indemnity may be sought under Section 7.1 controls the defense, the Shareholders agree, in accordance with the notice procedures set forth applicable limitations in Section 7.28.3, to pay such Purchaser Indemnified Party promptly upon demand from time to time all reasonable attorneys’ fees and other costs and expenses of defense, with the Escrow Fund (to the extent existing and sufficient) serving as the initial source of recovery for such Purchaser Indemnified Party. The party not controlling such defense (the “Non-controlling Party”) may participate therein at its own expense. The party controlling such defense (the “Controlling Party”) will keep the Non-controlling Party reasonably advised of the status of such suit or proceeding and the defense thereof and will consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Non-controlling Party will furnish the Controlling Party with -58- such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and will otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding.
(d) The Purchaser Indemnified Party will not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the Shareholder Representative, which will not be unreasonably withheld, delayed or conditioned; provided, however, that any delay in delivering any Indemnification Notice the consent of the Shareholder Representative will not affect be required if such settlement or judgment involves (i) a remedy other than monetary damages or (ii) a Specified Claim. Notwithstanding the indemnification provided hereunderforgoing, except the Purchaser Indemnified Party may, but shall not be obligated to, request the consent of the Shareholder Representative to settlements of Specified Claims, and if such consent is obtained, the Shareholders irrevocably agree that the amount of such settlement is a Loss for purposes of this Article VIII. However, if such consent is not requested or is requested and not obtained, the Shareholders shall be permitted to contest all Loss claims based on settlements of Specified Claims in accordance with this Article VIII.
(e) If the Shareholders assume or maintain control of such defense in compliance with Section 8.6(b), (i) they may access the funds in the Escrow Fund (to the extent existing and sufficient) to pay all reasonable attorneys’ fees and other costs and expenses of such defense in accordance with the Indemnifying applicable limitations in Section 8.3 and (ii) the Shareholder Representative will not agree to any compromise or settlement of, or the entry of any judgment arising from, any such Proceeding without the prior written consent of the Purchaser Indemnified Party, which consent the Purchaser Indemnified Party will not unreasonably withhold or delay. The Purchaser Indemnified Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice no Liability with respect to a Third Party Claimany compromise or settlement of, or the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement entry of any CIE Claim; provided that in such eventjudgment arising from, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)Proceeding effected without its consent.
(bf) Notwithstanding the other provisions of this Article VIII, if a Person not a party to this Agreement asserts that a Purchaser Indemnified Party is liable to such Person for an obligation for which such Purchaser Indemnified Party may be entitled to indemnification pursuant to this Article VIII, and such Purchaser Indemnified Party determines that it has a business reason to fulfill such obligation, then (i) With respect to a Third Party Claim, the Indemnifying such Purchaser Indemnified Party will be entitled to participate in satisfy such obligation, without notice to or consent from the defense thereof andShareholders, if it so elects, to assume the defense thereof, unless (ii) such Third Party Claim is reasonably likely to materially and adversely affect the Purchaser Indemnified Party and/or may subsequently make a claim for indemnification in accordance with the Indemnified Party's Affiliates other than as a result provisions of monetary damages. Unless the this Article VIII and (iii) such Purchaser Indemnified Party will have notified be reimbursed, in accordance with the Indemnifying Party provisions of this Article VIII, for any such Losses for which it is entitled to indemnification pursuant to this Article VIII, subject to the right of the existence Shareholders to dispute such Purchaser Indemnified Party’s entitlement to indemnification.
(g) Notwithstanding the provisions of the condition set forth in the preceding sentenceSection 11.8, the Indemnifying Party will have thirty (30) days (or such lesser number Shareholder Representative consents to the non-exclusive jurisdiction of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or in which a Proceeding is brought by another Person against any regulatory inquiry or investigation) from receipt Purchaser Indemnified Party for purposes of the Indemnification Notice any claim that a Purchaser Indemnified Party may have under this Agreement with respect to the Proceeding or the matters alleged therein. The Shareholder Representative agrees that process may be served on them with respect to such a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate claim anywhere in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderworld.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Share Purchase Agreement
Third Party Claims. Promptly after receipt by a party entitled to indemnification under Sections 13.1 or 13.2 or any other provision of this Agreement (athe “Indemnitee”) The Indemnified Party agrees to give the Indemnifying Party of written notice in writing of the assertion or the commencement of any claim Proceeding with respect to any matter referred to in Sections 13.1 or demand made by, 13.2 or in any other Action instituted by, applicable provision of this Agreement made or brought by any Person who is not a Party party to this Agreement (a “Third Party Claim”) ), the Indemnitee shall give written notice describing such claim or Proceeding in reasonable detail in light of the circumstances then known to the Indemnitee to the party obligated to indemnify Indemnitee (the “Indemnitor”), and thereafter shall keep the Indemnitor reasonably informed with respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2thereto; provided, however, that any delay in delivering any Indemnification Notice will failure of the Indemnitee to keep the Indemnitor reasonably informed as provided herein shall not affect relieve the indemnification provided hereunder, Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party will have been materially Indemnitor is prejudiced as thereby. If any Proceeding shall be commenced against any Indemnitee by a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimthird party, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in such Proceeding and assume the defense thereof andwith counsel reasonably satisfactory to the Indemnitee, if it so electsat the Indemnitor’s sole expense; provided, however, that the Indemnitor shall not have the right to assume the defense thereof, unless of any Proceeding if (i) such Third Party Claim involves criminal liability; (ii) the Indemnitee shall have one or more legal or equitable defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnitee, counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor; (iii) such litigation is reasonably likely to materially and adversely affect have a material adverse effect on any other matter beyond the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party scope or limits of the existence indemnification obligation of the condition set forth Indemnitor; or (iv) the Indemnitor shall not have assumed the defense of the litigation in the preceding sentence, the Indemnifying Party will have a timely fashion (but in any event within thirty (30) days (or of notice of such lesser number of days set forth in Proceeding). If the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to Indemnitor shall assume the defense of such Third Party Claim. All Losses incurred by any Proceeding, the Indemnified Party prior Indemnitee shall be entitled to participate in any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend Proceeding at its expense, with counsel selected by and the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but Indemnitor shall not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any settle such defense at its own expense Proceeding unless (A) the Indemnifying Party settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff of a full and unconditional release of the Indemnified Party are both named parties Indemnitee from all liability with respect to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims matters that are inconsistent with one or more of those that may be available subject to the Indemnifying Party in respect thereof or such Proceeding, (B) the Indemnified Party assumes the defense settlement shall not include a finding or admission of any violation of a Third Party Claim after Legal Requirement or any violation of the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedrights of any Person, and in (C) the case settlement imposes any injunctive relief or other restrictions of (A) any kind or nature on the Indemnitee or (B), all such expenses incurred D) otherwise shall have been approved by the Indemnified Party in connection with Indemnitee, such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects approval not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend be unreasonably withheld or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimdelayed.
Appears in 1 contract
Third Party Claims. (a) The In the event that an Indemnified Party agrees to give the Indemnifying Party becomes aware of a third party claim (including notice in writing of the assertion commencement of any claim legal proceeding, threat, audit or demand made by, or any other Action instituted by, any Person not a Party to this Agreement examination) (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in respect of which indemnity may be sought under Section 7.1 an indemnification claim pursuant to this Article VIII, such Indemnified Party shall promptly notify in accordance with writing the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result Stockholder Representative of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, setting forth a description of the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating information with respect to the Third Party Claim. Any CIE Claim then known to the Indemnified Party, and the Stockholder Representative shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubtentitled, if any such exposure is created that results in Losses the Stockholder Representative so elects by written notice delivered to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or within forty-five (45) days after receiving the Indemnified Party's Affiliates other than ’s notice of such claim and except as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth provided in the preceding sentenceSection 8.6(c), the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All , at the sole expense of the Effective Time Company Stockholders through a deduction from the Escrow Fund subject to the dollar limitation set forth in Section 8.8(b); provided, however, that such notice shall not be effective unless and until the Stockholder Representative irrevocably agrees and acknowledges that (1) all or a portion of the Losses incurred arising out of such Third Party Claim shall constitute Losses for which the Indemnified Parties are entitled to be indemnified pursuant to this Article VIII and (2) agrees in writing not to submit an Objection Notice with respect to all of the Losses arising out of such Third Party Claim or any indemnification claim by the Indemnified Party prior Parties based thereon. If the Stockholder Representative so assumes any such defense, the Stockholder Representative shall use all commercially reasonable efforts to any assumption by diligently conduct the Indemnifying Party defense and prosecution of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If The Stockholder Representative shall not compromise or settle such Third Party Claim or consent to entry of any judgment in respect thereof without the Indemnifying prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed). In the event that the Stockholder Representative assumes the defense of the Third Party notifies Claim in accordance with this Section 8.6, the Indemnified Parties may retain separate counsel and participate in the defense of the Third Party within Claim, but the Defense Notice Period fees and expenses of such counsel shall be at the sole expense of the Indemnified Parties and shall not be paid out of the Escrow Fund unless and until the Indemnified Parties shall reasonably determine upon the written advice of nationally recognized counsel that it elects there is a material conflict of interest between or among the Indemnified Parties, on the one hand, and the Stockholder Representative and the Effective Time Company Stockholders, on the other hand, with respect to defend such Third Party Claim, it in which case the reasonable fees and expenses of such counsel will be paid out of the Escrow Fund. Subject to an appropriate joint defense agreement, the Indemnified Parties will cooperate in the defense of the Third Party Claim and will provide reasonable access to documents, assets, properties, books and records reasonably requested by the Stockholder Representative and material to the claim and will make available all officers, directors and employees reasonably requested by the Stockholder Representative for investigation, depositions and trial.
(b) Notwithstanding anything in this Agreement to the contrary, the Indemnified Parties (and not the Stockholder Representative) shall be entitled to assume control the defense of any Third Party Claim if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the claim seeks an injunction or equitable relief against the Indemnified Parties; (iii) the Third Party Claim involves a claim of infringement relating to the Company Intellectual Property; or (iv) Parent reasonably determines that the claim is reasonably likely to result in Losses to the Indemnified Parties in an amount greater than the amount of cash in the Escrow Fund at such time that is not subject to any outstanding claims.
(c) If either (i) the Stockholder Representative fails or elects not to assume the defense of the Indemnified Parties against such Third Party Claim within the forty-five (45) day period set forth in Section 8.6(a) above, or (ii) if the provisions of Section 8.6(b) apply, the Indemnified Party shall have the right in its sole discretion to so defend at its expenseconduct the defense of any such claim and may compromise or settle such claim; provided, with counsel selected however, that any such compromise or settlement of such Third Party Claim without the consent of the Stockholder Representative shall (A) not constitute prima facie evidence of a breach by the Indemnifying Party Company or any Company Stockholder of any representation, warranty or covenant contained in this Agreement or any Related Agreement, (B) not establish, be determinative of or prove the amount or existence of any Losses, (C) not involve a claim or include an admission of criminal liability and (D) include a full and unqualified release of the Surviving Corporation and the Company Stockholders. In the case of the Specified Losses that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense are amounts paid in settlement of a Third Party Claim, as long as the Indemnified related Third Party will Claim does not involve the admission of criminal liability and any settlement includes a full and unqualified release of the Company Stockholders, the Stockholder Representative shall have no power or authority to object under any provision of this Article VIII to the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying PartySpecified Losses. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes Parties shall conduct the defense of a the Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedactively and diligently, and in subject to an appropriate joint defense agreement, the case of (A) or (B), all such expenses incurred by Stockholder Representative will cooperate with the Indemnified Party in connection with such participation Parties, and, the Stockholder Representative will be borne by use his, her or its commercially reasonable efforts to cause the Indemnifying Party. Each Party will reasonably Effective Time Company Stockholders to cooperate in the defense or prosecution of a Third Party Claim. Such cooperation that claim and will include provide full access to documents, assets, properties, books and records reasonably requested by the retention and, upon the Indemnifying Party's request, the provision Indemnified Parties and material to the Indemnifying Party of records claim and information which are will make available all individuals reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend requested by the Indemnified Party against a Third Party ClaimParties for investigation, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimdepositions and trial.
Appears in 1 contract
Sources: Merger Agreement (Omniture, Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give In the Indemnifying Party notice in writing of the assertion case of any claim or demand made by, or any other third party Action instituted by, any Person not a Party as to this Agreement (a “Third Party Claim”) in respect of which indemnity may be indemnification is sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimby an Indemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Indemnitor shall have 25 Business Days after receipt of a Claim Notice to notify the Indemnified Party's receipt thereofIndemnitee that it elects to conduct and control such Action. If the Indemnitor elects to conduct and control such Action, truethe Indemnitor shall agree promptly to reimburse the Indemnitee for the full amount of any Damages resulting from such Action, correct except fees and complete copies expenses of all material notices counsel for the Indemnitee incurred after the assumption of the conduct and documents (including court papers) received control of such Action by the Indemnified Party relating Indemnitor. If the Indemnitor does not give the foregoing notice, the Indemnitee shall have the right to conduct and control such Action (without prejudice to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not Indemnitee’s right to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses seek indemnification pursuant to Section 7.1(a)(iithis Article IX).
(b) (i) With respect to a Third Party Claim, provided, that the Indemnifying Party will be entitled Indemnitee shall permit the Indemnitor to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense conduct of such Third Party Claim. All Losses incurred Action through counsel chosen by the Indemnified Party prior to any assumption Indemnitor, but the fees and expenses of such counsel shall be borne by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party ClaimIndemnitor. If the Indemnifying Party notifies Indemnitor gives the Indemnified Party within foregoing notice, subject to the Defense Notice Period that it elects to defend such Third Party Claimfirst and second sentences of this Section 9.7, it will the Indemnitor shall have the right right, at the sole expense of the Indemnitor, to so defend at its expenseconduct and control, such Action with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Indemnitee, and the Indemnifying Party has duly assumed Indemnitee shall cooperate with the defense of a Third Party ClaimIndemnitor in connection therewith, provided, that (x) the Indemnified Party will have Indemnitor shall permit the right, but not the obligation, Indemnitee to participate in the defense thereof, including the opportunity to participate in any discussions such conduct or correspondence with any Governmental Entity, and to employ settlement through counsel separate from the counsel employed chosen by the Indemnifying Party. The Indemnified Party will participate in any Indemnitee, but the fees and expenses of such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will shall be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party ClaimIndemnitee, and making employees available on a mutually convenient basis to provide additional information and explanation (y) the Indemnitor may not compromise or settle any such Action without the consent of the Indemnitee (which consent will not be unreasonably withheld or delayed) unless (i) there is no finding or admission of any material provided hereunder.
violation of Law by the Indemnitee or any violation by the Indemnitee of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, (ii) the sole relief provided is money Damages that are paid in full by the Indemnitor, (iii) the Indemnitee shall have no liability with respect to any compromise or settlement and (iv) such settlement includes an unconditional release in favor of the Indemnitee by the third-party claimant from all liability with respect to such claim. In the event case of any third party Action as to which indemnification is sought by the Indemnifying Party (x) elects not to defend Indemnitee which involves a claim for Damages other than solely for money Damages which could have a continuing effect on the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result business of the Indemnified Party's election to defend Indemnitee, the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming Indemnitee and the defense of a Third Party Claim, fails to Indemnitor shall jointly control the conduct the defense of such Third Party Claim Action. The parties hereto shall use their reasonable best efforts to minimize any Damages from claims by third parties and shall act in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party good faith in responding to, defending against, settling or otherwise dealing with such claims, notwithstanding any dispute as to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimliability under this Article IX.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phillips Van Heusen Corp /De/)
Third Party Claims. Any Person making a claim for indemnification under this Section 5.2 (aan “Indemnitee”) The Indemnified Party agrees to give shall notify the Indemnifying Party notice indemnifying party (an “Indemnitor”) of the claim in writing of the assertion promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party ClaimProceeding”) in respect against it (if by a third party), describing the claim, the amount thereof (if known and quantifiable) and the basis thereof; provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except its obligations hereunder unless and to the extent the Indemnifying Party will have been materially Indemnitor shall be actually prejudiced as a result of by such delay. From and after the delivery of a Indemnification Notice with respect failure to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimso notify. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof andof such Proceeding giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, if it so elects, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereofthereof (including as it relates to the posting of any bond or the making of any guarantee in connection with such defense) by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense; provided that prior to the Indemnitor assuming control of such defense, unless Indemnitor shall first reasonably demonstrate to the Indemnitee in writing (A) the Indemnitor’s financial ability to provide full indemnification to the Indemnitee with respect to the estimated amount of the Loss relating to such Third Party Claim is Proceeding (determined in good faith based upon all of the information pertaining to the Proceeding available at such time and after giving effect to any applicable limitations on indemnification in Section 5.2(d)) and (B) that, assuming the Indemnitor were to become obligated to indemnify the Indemnitee hereunder in respect of the estimated amount of the Loss relating to such Proceeding (determined in good faith based upon all of the information pertaining to the Proceeding available at such time), the Indemnitor (after giving effect to any applicable limitations on indemnification in Section 5.2(d)) would be responsible for more of the Loss than the Indemnitee in the event such Proceeding were determined in an adverse manner to the Indemnitor and the Indemnitee; and provided, further, that:
(i) the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel (x) that are incurred prior to the date the Indemnitor effectively assumes control of such defense) or (y) retained because of a conflict of interest exists between the Indemnitor and the Indemnitee, each of which, notwithstanding the foregoing, shall be borne by the Indemnitor);
(ii) the Indemnitee shall be entitled to assume control of such defense (the fees and expenses of counsel retained by Indemnitee in connection with such defense shall be deemed indemnifiable Losses, subject to the limitations set forth in this ARTICLE V) if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation (provided that in such event (x) the Indemnitee shall not enter into any settlement of a claim without the prior written consent of the Indemnitor (which shall not be unreasonably withheld, delayed or conditioned), (y) the Indemnitor shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnitor), and (z) the Indemnitor shall be entitled to review the files and record relating to such defense upon request of the Indemnitor); (B) the Indemnitee reasonably likely believes that an adverse determination with respect to the Proceeding giving rise to such indemnification claim would materially and adversely affect the Indemnified Party and/or Indemnitee’s business reputation; (C) the Indemnified Party's Affiliates other than claim seeks an injunction or equitable relief against the Indemnitee; or (D) the Indemnitor failed or is failing to vigorously prosecute or defend such claim; and
(iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a Proceeding or ceasing to defend such Proceeding if, pursuant to or as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentencesuch settlement or cessation, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) injunctive or other equitable relief will be imposed against the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental EntityIndemnitee, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) Indemnitee will become responsible for any payment or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense any portion thereof or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claimother Liabilities, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided limitations on indemnification in Section 7.3(b)(i5.2(d); , or otherwise, or (zC) after assuming in the defense case of a Third Party Claimsettlement, fails such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failedclaim, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimwithout prejudice.
Appears in 1 contract
Sources: Securities Contribution and Purchase Agreement (21st Century Oncology Holdings, Inc.)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing obligations and liabilities of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From Indemnitee and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice Indemnitor hereunder with respect to a Third Party Claim shall be subject to the following terms and conditions:
(a) The Indemnitee seeking indemnification for such Third Party Claim shall give the “Defense Notice Period”) Indemnitor written notice of the Third Party Claim promptly after receipt by the Indemnitee of notice thereof, and the Indemnitor may undertake the defense, compromise and settlement thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify the Indemnified Party Indemnitor of its election such claim shall not relieve the Indemnitor of any liability that the Indemnitor may have with respect to assume such claim except to the extent the Indemnitor demonstrates that the defense of such Third Party Claimclaim is prejudiced by such failure. All Losses incurred by the Indemnified Party prior to any The assumption by the Indemnifying Party of the defense defense, compromise and settlement of a any such Third Party Claim will be reimbursed by the Indemnifying Party to Indemnitor shall not be an acknowledgment of the extent obligation of the Indemnifying Party is required Indemnitor to indemnify and hold harmless the Indemnified Party from, against and in such Indemnitee with respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claimclaim hereunder. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects Indemnitee desires to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the rightparticipate in, but not the obligationcontrol, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense defense, compromise and settlement, it may do so at its own expense unless (A) the Indemnifying Party sole cost and the Indemnified Party are both named parties to the proceedings and a Governmental Entityexpense. If, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's requesthowever, the provision Indemnitor fails or refuses to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct undertake the defense of such Third Party Claim in a reasonably diligent manner within twenty fifteen (2015) days after receiving written notice from the Indemnified Party of such claim has been given to the effect that Indemnitor by the Indemnifying Party has so failedIndemnitee, the Indemnified Party will Indemnitee shall have the right but not to undertake the obligation to assume defense, compromise and settlement of such claim with counsel of its own defense; it being understood choosing. In the circumstances described in the preceding sentence, the Indemnitee shall, promptly upon its assumption of the defense of such claim, make an Indemnification Claim as specified in Section 12.3 which shall be deemed an Indemnification Claim that is not a Third Party Claim for the Indemnified Party's purposes of the procedures set forth herein.
(b) If, in the reasonable opinion of the Indemnitee, any Third Party Claim or the litigation or resolution thereof involves an issue or matter which could reasonably be expected to have a material adverse effect on the business, operations, assets, properties or prospects of the Indemnitee (including, without limitation, the administration of the Tax Returns and responsibilities under the Tax laws of the Indemnitee), the Indemnitee shall have the right to indemnification for control the defense, compromise and settlement of such Third Party Claim will undertaken by the Indemnitor, and the costs and expenses of the Indemnitee in connection therewith shall not be adversely affected by assuming included as part of the indemnification obligations of the Indemnitor hereunder. If the Indemnitee elects to exercise such rights, the Indemnitor shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(c) No settlement of a Third Party Claim involving the asserted liability of the Indemnitor under this Article 12 shall be made without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $100,000 or less where the Indemnitor has not responded within thirty (30) business days of notice of a proposed settlement. If the Indemnitor assumes the defense of such a Third Party Claim, (i) no compromise or settlement thereof may be effected by the Indemnitor without the Indemnitee's consent unless (A) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against the Indemnitee, (B) the sole relief provided is monetary damages that are paid in full by the Indemnitor, and (C) the compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnitee of a release, in form and substance satisfactory to the Indemnitee, from all liability in respect of such Third Party Claim, and (ii) the Indemnitee shall have no liability with respect to any compromise or settlement thereof effected without its consent.
(d) In connection with the defense, compromise or settlement of any Third Party Claim, the Indemnitee and the Indemnitor shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by such Indemnitee or Indemnitor and, as may reasonably be related to any such Third Party Claim, shall provide access to the counsel, accountants and other representatives of such Indemnitee or Indemnitor during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such Indemnitee or Indemnitor and will furnish to such Indemnitee or Indemnitor copies of all such documents as may reasonably be requested (certified, if requested).
Appears in 1 contract
Third Party Claims. (a) The Indemnified Promptly after receipt by a Party agrees entitled to give the Indemnifying Party indemnity under this Article 7 of notice in writing of the assertion of any a third-party claim or demand made byagainst it, or any other Action instituted bysuch Indemnified Party shall give notice to the Party obligated to indemnify under such Article of the assertion of such third-party claim, any Person not a provided that the failure to notify the Indemnifying Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect relieve the indemnification provided hereunderIndemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party will have been materially prejudiced as a result demonstrates that the defense of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, third-party claim is prejudiced by the Indemnified Party will deliver Party’s failure to give such notice. After notice to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete Party shall promptly deliver to the Indemnifying Party copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)third-party claim.
(b) If an Indemnified Party gives notice to the Indemnifying Party of the assertion of a third-party claim (i) With respect to a the “Third Party ClaimClaim Notice”), the Indemnifying Party will shall be entitled to participate in the defense thereof and, if it so elects, of such third-party claim with counsel of its own choice or to assume the defense thereof, unless of such Third Party Claim is third-party claim with counsel reasonably likely satisfactory to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless Subject to the Indemnified Party will have notified provisions hereof, if the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect does not give notice to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third third-party claim, the Indemnifying Party Claimwill be bound by any determination made in such third-party claim or any compromise or settlement effected by the Indemnified Party, including, without limitation, the payment of reasonable attorneys’ fees, costs and expenses incurred in connection therewith; provided that the Indemnifying Party shall not be liable for any compromise or settlement made by an Indemnified Party unless the Indemnified Party has provided at least 20 business days’ advance written notice of a pending compromise or settlement (which notice shall set forth or describe all material terms of the pending compromise or settlement in reasonable detail) and within such period Indemnifying Party does not give notice to Indemnified Party of both its rejection of the terms of the compromise or settlement and its election to assume the defense of the related third party claim.
(c) After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such third-party claim, the Indemnifying Party shall keep the Indemnified Party reasonably informed as to the status of the third-party claim. All Losses The Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Article 7 for any fees of other counsel or any other expenses with respect to the defense of such third-party claim, in each case subsequently incurred by the Indemnified Party (after assumption of the defense by the Indemnifying Party) if the Indemnified Party decides to participate in any such proceeding with counsel of its choice and at its own expense. Notwithstanding the foregoing, the Indemnifying Party shall be responsible for costs of investigation and fees of counsel or any other expenses already incurred by the Indemnified Party prior to any the assumption by the Indemnifying Party of the defense of such third-party claim (provided that the Indemnified Party has timely provided a Third Party Claim will be reimbursed by Notice). Furthermore, to the extent that counsel for the Indemnified Party and the Indemnifying Party reasonably conclude in good faith that, in light of any actual or potential conflict of interest or different and material legal defenses available to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party ClaimParty, it will have the right to so defend at its expense, with would be inappropriate for legal counsel selected by the Indemnifying Party that is reasonably acceptable to represent the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claimwith respect to certain claims or defenses, the Indemnified Party will have shall be entitled to retain separate counsel at the right, but not Indemnifying Party’s expense with respect to such claims and defenses.
(d) If the obligation, to participate in Indemnifying Party assumes the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entityof, and to employ counsel separate from the counsel employed diligently defends, a third-party claim, no compromise or settlement of such third-party claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent; provided that such consent of the Indemnified Party shall not be required if (i) there is no finding or admission of any violation of laws which affect the Indemnified Party or (ii) either (A) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, or (B) the Indemnifying Party agrees in writing to pay any amounts payable pursuant to a settlement agreement and such settlement includes an unconditional and irrevocable release of the Indemnified Party. The Indemnified Party shall have no Liability with respect to any compromise or settlement of such third-party claims affected without its consent.
(e) Notwithstanding the foregoing, the Indemnifying Party will participate in any not be entitled to assume (or retain, as applicable) control of such defense at its own expense unless if (A) the Indemnifying Party and claim for indemnification is with respect to any criminal proceeding, indictment or allegation against the Indemnified Party are both named parties to the proceedings and a Governmental EntityParty, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after upon the Indemnifying Party has failed failing to diligently pursue defend such claim in good faith, which failure continues for a Third Party Claim it has assumed, and in the case period of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) 30 days after receiving following written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. Any Person making a claim for indemnification (aan “Indemnitee”) The Indemnified Party agrees to give under this Section 7.3 shall notify the Indemnifying Party notice indemnifying party (an “Indemnitor”) of the claim in writing of the assertion promptly after receiving notice of any Action or other claim or demand made byagainst it, or any other Action instituted bydescribing the claim, any Person the amount thereof (if known and quantifiable) and the basis thereof; provided that the failure to so notify an Indemnitor shall not a Party to this Agreement (a “Third Party Claim”) in respect relieve the Indemnitor of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, its obligations hereunder except to the extent that (and only to the Indemnifying Party will have extent that) the Indemnitor has been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimthereby. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof andof such Action or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, if it so elects, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof; provided that, unless such Third Party Claim is reasonably likely prior to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense Indemnitor assuming control of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party it shall first verify to the extent Indemnitee in writing that such Indemnitor shall be responsible (with no reservation of any rights) for all liabilities and obligations relating to such claim for indemnification; and provided, further, that:
(a) the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, Indemnitee shall be entitled to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, of such claim and to employ engage counsel of its choice for such purpose; provided that the fees and expenses of such separate from the counsel employed shall be borne by the Indemnifying Party. The Indemnified Party will participate in Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense at its own expense which, notwithstanding the foregoing, shall be borne by the Indemnitor) and except that the Indemnitor shall pay the reasonable fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee;
(b) the Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (A) the Indemnifying Party and the Indemnified Party are both named parties claim for indemnification relates to the proceedings and a Governmental Entityor arises in connection with any criminal or quasi criminal Action, arbitrator indictment or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or allegation; (B) the Indemnified Party assumes Indemnitee reasonably believes an adverse determination with respect to the Action or other claim giving rise to such claim for indemnification would be detrimental to the Indemnitee’s future business prospects; (C) the claim seeks an injunction or equitable relief against the Indemnitee; (D) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (E) upon petition by the Indemnitee, a court of competent jurisdiction rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; or (F) the Indemnitee reasonably believes that the Indemnitor lacks the financial resources to satisfy any Losses relating to the claim;
(c) if the Indemnitor shall control the defense of a Third Party Claim after any such claim, the Indemnifying Party has failed Indemnitor shall obtain the prior written consent of the Indemnitee before consenting to diligently pursue a Third Party Claim it has assumedthe entry of any judgment with respect to, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution entering into any settlement of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not claim or ceasing to defend the Indemnified Party against a Third Party Claimsuch claim if, whether by not giving the Indemnified Party timely notice of its desire pursuant to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of such entry into judgment, settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party's election Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Losses with respect to defend such Action, with prejudice, including a covenant not to ▇▇▇ with respect thereto; and
(d) if the Third Party Claim as provided in Section 7.3(b)(i); Indemnitor is not entitled to, or (z) after assuming the defense of a Third Party Claimdoes not, fails to conduct the defense assume control of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party defense pursuant to the effect preceding provisions of this Section 7.3, the Indemnitee shall control such defense without waiving any right that the Indemnifying Party has so failed, Indemnitee may have against the Indemnified Party will have the right but not the obligation Indemnitor for indemnification pursuant to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimthis Article VII.
Appears in 1 contract
Sources: Asset Purchase Agreement (Industrial Services of America Inc)
Third Party Claims. (a) The An Indemnified Party agrees shall give prompt written notice to give the Indemnifying Party notice in writing of the assertion of any claim claim, action, suit or demand made byproceeding brought by any third party (collectively, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party ClaimClaims”) with respect to which the Indemnified Party believes it is entitled to indemnification hereunder, together with a copy of any claim, legal pleadings or correspondence with respect thereto received by the Indemnified Party. Such written notice shall be given within thirty (30) days from the date from which the Indemnified Party became aware of the Third Party Claim; provided, that the failure of an Indemnified Party to give timely notice hereunder shall not affect rights to indemnification, except and only to the extent that the Indemnifying Party demonstrates actual material harm and prejudice caused by such failure.
(b) Upon receipt of a notice in respect of which indemnity may be sought under Section 7.1 in accordance with a Third Party Claim from an Indemnified Party, subject to the notice procedures limitations set forth herein, the Indemnifying Party may, at its option by delivering written notice to the applicable Indemnified Parties within fifteen (15) days of receipt of such notice, assume and control the investigation and defense of, at its sole cost and expense and with its own counsel of recognized standing and competence reasonably acceptable to such Indemnified Party, any such Third Party Claim and shall be entitled to assert any and all defenses available to the Indemnified Party to the fullest extent permitted by applicable Law; provided, that notwithstanding the foregoing, no Indemnifying Party shall be entitled to assume or control the investigation, defense or prosecution of such Third Party Claim if (i) substantially all of the damages associated with such Third Party Claim are not reasonably expected to be indemnifiable hereunder (including in the event the amount in dispute is reasonably likely to exceed the maximum amount for which the Indemnifying Party can then be liable pursuant to this Section 7.211 in light of the limitations on indemnification contained herein), (ii) at the time of assumption and thereafter, the Indemnifying Party fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently, (iii) such claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (iv) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith after consultation with counsel that joint representation would be inappropriate or (v) the Indemnifying Party does not agree in writing that it is obligated (without reservation of any rights) to pay all Losses arising from or related to such claim subject only to the limitations on indemnification contained herein; provided, however, that in no event shall this Section 11.4(b) give Seller any delay right to take or conduct any action with respect to any matter relating to Taxes (a “Third Party Tax Claim”) if, in delivering Purchaser’s sole discretion, the Third Party Tax Claim could impact Taxes of Purchaser, the Company or the Subsidiary in any Indemnification Notice will not affect period beginning on or after the indemnification provided hereunder, except to the extent Closing Date.
(c) If the Indemnifying Party will have been materially prejudiced shall undertake to defend any such Third-Party Claim, it shall (i) indemnify and advance fees and expenses of the Indemnified Party (against appropriate invoice specifying the fees and expenses in reasonable detail) and keep the Indemnified Party indemnified, on demand against any and all Losses suffered or incurred by the Indemnified Party as a result of such delay. From election and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10ii) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to timely notify the Indemnified Party of its intention to do so in accordance with this Section 11.4, and the Indemnified Party and the Indemnifying Party each agree to, and shall procure each of their respective Representatives to, use its commercially reasonable efforts to cooperate fully in the defense of such Third-Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third-Party Claim. The Indemnifying Party shall not settle, compromise or discharge, or consent to the entry of any judgment with respect to, any such Third-Party Claim without the prior written consent of the Indemnified Party unless the terms of such settlement, compromise, discharge or judgment, as applicable, (A) consist solely of monetary damages for which the Indemnified Parties are entitled to full indemnification or advancement of fees and expenses under this Agreement, (B) do not impose on any Indemnified Party or its Affiliates any continuing obligation, (C) would not reasonably be expected to have a future material adverse effect on any Indemnified Party or its Affiliates, (D) include, as a condition precedent thereto, a binding unconditional, irrevocable written release of the Indemnified Parties and their respective Affiliates from all Liability with respect to such claim given by each claimant or plaintiff to such claim, (E) do not require any Indemnified Party or its Affiliates to (x) admit any wrongdoing or Liability or acknowledge any rights of any Person, (y) take or refrain from taking any action or (z) waive any rights that the Indemnified Party may have against the Person making the Third Party Claim. Notwithstanding an election to assume the defense of such Third Party Claim. All Losses incurred by claim or proceeding, the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend at its expense, with employ separate counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, it and to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel and participation if (i) the Indemnified Party shall have reasonably determined or been advised by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) the Indemnifying Party shall have authorized in a reasonably diligent manner within twenty (20) days after receiving written notice from writing the Indemnified Party to employ separate counsel at the effect that Indemnifying Party’s expense. If the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for receiving such Third notice of Third-Party Claim will does not be adversely affected by assuming timely elect to defend such Third-Party Claim in accordance with this Section 11.4, (x) the Indemnifying Party may participate in the investigation, defense and prosecution of such Third Party Claim, at such Indemnifying Party’s sole cost and expense, and (y) the Indemnified Party shall have the right, at the Indemnifying Party’s sole cost and expense, to defend and control such Third-Party Claim. The Indemnified Party shall not settle, compromise or discharge, or admit any Liability with respect to, any such Third-Party Claim without the written consent of the Indemnifying Party (such consent not to be unreasonably withheld or delayed). If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts incurred by the Indemnified Party in defense of such claim (including reasonable fees and expenses of investigation, legal fees and other expenses), regardless of the outcome of such claim, shall be deemed indemnifiable “Losses” hereunder.
(d) In respect of any such Third Party Claim, an Indemnified Party shall not make any admission of Liability, agreement, settlement or compromise with any Person in relation thereto without obtaining the prior written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Third Party Claims. Any Person making a claim for indemnification under Section 7.2 (aan “Indemnitee”) The Indemnified Party agrees to give shall notify the Indemnifying Party notice indemnifying party (an “Indemnitor”) of the claim in writing of the assertion promptly after receiving written notice of any claim or demand made byaction, lawsuit, proceeding, investigation, or any other Action instituted byclaim against it (if by a third party), any Person describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the failure to so notify an Indemnitor shall not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not adversely affect the Indemnitee’s right to indemnification provided hereunder, hereunder except to the extent that (and only to the Indemnifying Party will have been extent that) the defense of that claim is materially prejudiced as a result of by such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimfailure. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof andof such action, if it so electslawsuit, proceeding, investigation, or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as thereof by appointing a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with reputable counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Indemnitee to be the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ lead counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention anddefense; provided that, upon the Indemnifying Party's request, the provision prior to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after Indemnitor assuming the defense of a Third Party Claim, fails to conduct the defense control of such Third Party Claim in a reasonably diligent manner defense it shall, within twenty (20) days after receiving written notice from the Indemnified Party of its receipt of an indemnification claim, first verify to the effect Indemnitee in writing that such Indemnitor shall be responsible (with no reservation of any rights) for all Liabilities relating to such claim for indemnification; and provided, further, that:
(i) the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation Indemnitee shall be entitled to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming participate in the defense of such Third Party Claimclaim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor, and except that the Indemnitor shall pay the reasonable fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee);
(ii) the Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay as and when incurred the fees and expenses of counsel retained by the Indemnitee if (A) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation, or investigation, (B) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding, or other claim giving rise to such claim for indemnification would be detrimental to the Indemnitee’s future business prospects, (C) the claim seeks an injunction or equitable relief against the Indemnitee, (D) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee, (E) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim, (F) the claim is with respect to Taxes, or (G) the Indemnitee reasonably believes that the Indemnitor lacks the financial resources to satisfy any Losses relating to the claim;
(iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to such claim, without prejudice; and
(iv) if the Indemnitor is not entitled to, or does not, assume control of such defense pursuant to the preceding provisions of Section 7.2(g), the Indemnitee shall control such defense without waiving any right that the Indemnitee may have against the Indemnitor for indemnification pursuant to Section 7.2.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give Any Indemnitee shall notify the Indemnifying Party notice Indemnitor of the claim in writing of the assertion promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim or demand made by, or any other Action instituted by, any Person not against it by a Party to this Agreement third party (a “Third Party Claim”), describing the claim, the amount thereof (if known and quantifiable) in respect and the basis thereof; provided that the failure to so notify an Indemnitor shall not relieve the Indemnitor of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, its obligations hereunder except to the extent that the Indemnifying Party will have been materially Indemnitor shall be actually prejudiced as a result of by such delay. From and after the delivery of a Indemnification Notice with respect failure to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claimso notify. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof andof such Third Party Claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, if it so elects, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as thereof by appointing a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with reputable counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Indemnitee to be the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ lead counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material defense; provided hereunder.that:
(iii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not Indemnitee shall be entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided participate in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate counsel shall be borne by the Indemnitee (20) days after receiving written notice from the Indemnified Party other than any fees and expenses of such separate counsel that are incurred prior to the effect that date the Indemnifying Party has so failedIndemnitor effectively assumes control of such defense which, notwithstanding the Indemnified Party will have foregoing, shall be borne by the right but Indemnitor);
(ii) the Indemnitor shall not the obligation be entitled to assume its own defense; it being understood control of such defense and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if: (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation (provided that in such event (x) the Indemnified Party's right to indemnification for such Third Party Claim will Indemnitee shall not enter into any settlement of a claim without the prior written consent of the Indemnitor (which shall not be adversely affected by assuming unreasonably withheld), (y) the Indemnitor shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnitor), and (z) the Indemnitor shall be entitled to review the files and record relating to such defense upon request of the Indemnitor); (B) the Third Party Claim seeks an injunction or equitable relief against the Indemnitee; (C) a conflict of interest exists between the Indemnitor and the Indemnitee; (D) the Indemnitor failed or is failing to vigorously prosecute or defend such Third Party Claim; or (E) the Third Party Claim, if adversely determined against the Indemnitee, would have a Material Adverse Effect; and
(iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a Proceeding or ceasing to defend such Proceeding if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim, without prejudice.
Appears in 1 contract
Third Party Claims. 15.5.1 Purchaser shall as soon as reasonably practical (aunverzüglich) The Indemnified Party agrees give notice to give the Indemnifying Party notice in writing of the assertion Sellers Group of any claim claim, suit, action or demand made by, or proceeding brought by a third party in respect of BIRD & BIRD 30/58 ASPA G.D. S.p.A. which Purchaser may seek any other Action instituted by, remedy against any Person not a Party to this Agreement Seller hereunder (a “Third Party Claim”).
15.5.2 Sellers Group may opt to (i) satisfy Sellers Group’s liability in respect of which indemnity may be sought under Section 7.1 in accordance the Third Party Claim or (ii) deliver to Purchaser without undue delay a written notice of disagreement with the notice procedures set forth Third Party Claim and/or the liability of Sellers Group, specifying in Section 7.2; providedreasonable detail, howeverbased upon the information then available to Sellers Group, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to nature and extent of the extent the Indemnifying Party will have been materially prejudiced as a result of such delaydisagreement. From and after the Sellers Group may upon timely delivery of a Indemnification Notice the notice of disagreement assume the defense against the Third Party Claim provided that Sellers Group acknowledges in writing Sellers Group’s obligation to fully indemnify Purchaser in respect of any costs and expenses incurred in conjunction with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct including all court fees and complete copies reasonable lawyer fees and fees for experts and consultants; upon such assumption of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim , Sellers Group shall be considered a reimburse Purchaser for any out of pocket expenses and costs Purchaser was required to incur for defending itself against such Third Party Claim for purposes until its assumption by Sellers Group. Notwithstanding the foregoing provisions of this Section 15.5.2 to the contrary, if after assuming the defense of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, Sellers Group discovers new information that indicates that the Indemnifying Third Party will Claim was not the responsibility of Sellers Group in the first place under this Agreement, then Sellers Group may rescind and withdraw Sellers Group’s written acknowledgement of its obligation to indemnify Purchaser on account of such Third Party Claim (“Withdrawn Admission of Obligation to Indemnify”) provided that (i) Sellers Group can prove by clear and convincing evidence that Sellers Group is not liable under this Agreement in respect of the Third Party Claim that is the subject of the Withdrawn Admission of Obligation to Indemnify; (ii) Sellers Group complied with the provisions of Section 15.5.3 during the period that it was defending against such Third Party Claim; (iii) Sellers Group pays all the costs and expenses that it incurred during the period that Sellers Group was defending against such Third Party Claim and (iv) the statute of limitations of any claims of Purchaser pursuant to this Agreement in connection with the Third Party Claims is suspended (gehemmt) with effect of Purchaser’s notice pursuant to Section 15.5.1 up and until the Third Party Claim has been finally adjucated (rechtskräftig entschieden) or finally settled (verglichen). Purchaser’s right to initiate arbitration proceedings pursuant to Section 28.10 shall remain unaffected.
15.5.3 When defending against the Third Party Claim, Sellers Group or Purchaser, as the case may be, shall (i) select counsel of recognized standing and competence, (ii) at all times diligently pursue a favorable resolution, (iii) keep each other at all times informed about the status of defense measures, and (iv) comply with any reasonable request of the other Party with respect to the defense. Purchaser or Sellers Group, as the case may be, shall be entitled allowed a reasonable opportunity to participate in the defense thereof andwith its own counsel and at their own expense.
15.5.4 Each Party shall be authorized to consent to a settlement of, if it so elects, to assume or the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result entry of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentenceany judgment arising from, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have with the right prior written consent of the other Parties, such consent not to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Partybe unreasonably withheld. The Indemnified Party will participate in foregoing shall not BIRD & BIRD 31/58 ASPA G.D.S.p.A. apply to any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party assumed by Sellers Group and for which Sellers Group has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision already reimbursed Purchaser pursuant to the Indemnifying Party second sentence of records and information which are reasonably relevant Section 15.5.2. Sellers Group shall not encumber any of the Purchased Items or agree to any restriction or condition to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party settlement that would directly negatively apply to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation Purchased Items and to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party ClaimHAPA AG.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Robbins & Myers Inc)
Third Party Claims. (a) The Indemnified Party agrees If any person entitled to give the Indemnifying Party indemnification under this Agreement (an "Indemnitee") receives notice in writing of the assertion of any claim or demand made by, of the commencement of any action or proceeding by any other Action instituted by, any Person person that is not a Party party to this Agreement or a subsidiary of any such party (a “"Third Party Claim”") in respect against such Indemnitee, the Indemnitee shall promptly provide written notice thereof (including a description of the Third Party Claim and an estimate of any Indemnifiable Losses, which indemnity may estimate shall not be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except conclusive as to the extent the Indemnifying Party will have been materially prejudiced as a result final amount of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver Indemnifiable Losses) to the party required to provide indemnification under this Agreement (the "Indemnifying Party, ") within ten (10) Business Days days after the Indemnified PartyIndemnitee's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense notice of such Third Party Claim. All Losses incurred Any delay by the Indemnified Party prior to any assumption by Indemnitee in providing such written notice shall not relieve the Indemnifying Party of any liability for indemnification hereunder except to the defense extent that the rights of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the are materially prejudiced by such delay.
(b) The Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend participate in or, by giving written notice to the Indemnitee, to assume the defense of any Third Party Claim at its expensesuch Indemnifying Party's expense and by such Indemnifying Party's own counsel (which shall be reasonably satisfactory to the Indemnitee), with counsel selected and the Indemnitee will cooperate in good faith in such defense. The Indemnifying Party shall not be liable for any legal expenses incurred by the Indemnifying Party that is reasonably acceptable to Indemnitee after the Indemnified Party. Once Indemnitee has received notice of the Indemnifying Party has duly assumed Party's intent to assume the defense of a Third Party Claim; provided, the Indemnified Party will have the righthowever, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) that if the Indemnifying Party and the Indemnified Party are both named parties fails to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed take steps reasonably necessary to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty ten (2010) days after receiving written of receipt of notice from the Indemnified Party to Indemnitee that such steps are not being taken, the effect that Indemnitee may assume its own defense and the Indemnifying Party has so failed, shall be liable for the Indemnified reasonable costs thereof.
(c) The Indemnifying Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such may settle any Third Party Claim will which it has elected to defend so long as the written consent of the Indemnitee to such settlement is first obtained (which consent shall not be adversely affected by assuming unreasonably withheld). The Indemnified Party shall not settle any Third Party Claim without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld).
(d) In the event that a Third Party Claim involves a proceeding as to which both CompuCom and ClientLink may be Indemnifying Parties, the parties agree to cooperate in good faith in a joint defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees If any Buyer Indemnitee or Seller Indemnitee (each referred to give the Indemnifying Party as an “Indemnitee”) receives notice in writing of the assertion by any third party of any claim or demand made by, of the commencement by any such third party of any action (any such claim or any other Action instituted by, any Person not a Party action being referred to this Agreement (a herein as an “Third Party Indemnifiable Claim”) in with respect of to which indemnity Seller or Buyer (each referred to as “Indemnitor”) are or may be sought under Section 7.1 obligated to provide indemnification, the Indemnitee shall promptly notify the Indemnitor in accordance with writing (the notice procedures set forth in Section 7.2“Claim Notice”) of the Indemnifiable Claim; provided, however, that any delay in delivering any Indemnification Notice will the failure to provide such notice shall not relieve or otherwise affect the obligation of the Indemnitor to provide indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of that any Losses directly resulted or were caused by such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)failure.
(b) The Indemnitors shall have thirty days after receipt of the Claim Notice (unless the claim or action requires a response before the expiration of such thirty-day period, in which case the Indemnitors shall have until the date that is ten days before the required response date) to acknowledge responsibility and undertake, conduct and control, through counsel of its own choosing, and at its expense, the settlement or defense thereof, and the Indemnitees shall cooperate with the Indemnitors in connection therewith; provided, that (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled Indemnitor shall permit the Indemnitee to participate in such settlement or defense through counsel chosen by the defense thereof andIndemnitee, provided that the fees and expenses of such counsel shall not be borne by the Indemnitors, (ii) the Indemnitor shall not settle any Indemnifiable Claim without the Indemnitee’s consent if it so electsthe settlement (A) requires the Indemnitee to admit wrongdoing, pay any fines or refrain from any action, (B) does not include a full release of Indemnitee or (C) may reasonably be expected to assume impact the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party ongoing operations of the existence Business, and (iii) if, in the opinion of counsel to the Indemnitor, the Indemnitee has separate defenses from the Indemnitor or that there is a conflict of interest between the Indemnitor and Indemnitee or if there is any danger of criminal liability of the condition set forth Indemnitee, then the Indemnitee shall be permitted to retain special counsel of its own choosing at the expense of the Indemnitor. So long as the Indemnitor is vigorously contesting any such Indemnifiable Claim in the preceding sentencegood faith, the Indemnifying Party will have Indemnitee shall not pay or settle such claim without the Indemnitor’s consent, which consent shall not be unreasonably withheld.
(c) If the Indemnitor does not notify the Indemnitee within thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from after receipt of the Indemnification Claim Notice with respect (or before the date that is ten days before the required response date, if the claim or action requires a response before the expiration of such thirty day period), that it acknowledges responsibility and elects to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume undertake the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by Indemnifiable Claim described therein, the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend at its expensecontest, with counsel selected by settle or compromise the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate Indemnifiable Claim in the defense thereofexercise of its reasonable discretion at the expense of the Indemnitees; provided, including that the opportunity to participate in Indemnitee shall notify the Indemnitor of any discussions compromise or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in settlement of any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Indemnifiable Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alliance Semiconductor Corp /De/)
Third Party Claims. Any Person making a claim for indemnification under this Section 7.2 or Section 8.1 (aan “Indemnitee”) The Indemnified Party agrees to give shall notify the Indemnifying Party notice indemnifying party (the “Indemnitor”) of the claim in writing of the assertion promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party ClaimProceeding”) in respect of which indemnity may be sought under Section 7.1 in accordance with against it (if by a third party), describing the notice procedures set forth in Section 7.2claim, the amount thereof (if known and quantifiable) and the basis thereof; provided, however, that any delay in delivering any Indemnification Notice will the failure to so notify the Indemnitor shall not affect relieve the indemnification provided hereunder, except Indemnitor of its obligations hereunder unless and to the extent the Indemnifying Party will have been Indemnitor shall be actually and materially prejudiced as a result of by such delayfailure to so notify. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim The Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, of such Proceeding giving rise to an Indemnitee’s claim for indemnification at the Indemnitor’s expense; provided that:
(i) the Indemnitor shall be entitled to assume control of such defense (including full responsibility for posting any bond, security, guarantee or similar assurance in connection with the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense prosecution of such Third Party Claim. All Losses incurred Proceeding) by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with appointing reputable counsel selected by the Indemnifying Party that is reasonably acceptable to Indemnitee (and the Indemnified Party. Once Indemnitor shall pay the Indemnifying Party has duly assumed the defense fees and expenses of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless counsel) if (A) an actual conflict of interest exists between the Indemnifying Party Indemnitor and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof Indemnitee; or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has Indemnitee failed to diligently pursue a Third Party Claim it has assumedprosecute or defend such claim; provided, that prior to the Indemnitor assuming control of such defense, Indemnitor shall (x) first demonstrate to the Indemnitee in writing (1) the Indemnitor’s financial ability to provide full indemnification to the Indemnitee with respect to such Proceeding and (2) that, assuming the Indemnitor were to become obligated to indemnify the Indemnitee hereunder in respect of the estimated amount of the Loss relating to such Proceeding (determined in good faith based upon all of the information pertaining to the Proceeding available at such time), the Indemnitor (after giving effect to the any applicable limitations on indemnification in Section 7.2(c)) would be responsible for more of the Loss than the Indemnitee in the case of (A) or (B), all event such expenses incurred by the Indemnified Party Proceeding were determined in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision an adverse manner to the Indemnifying Party of records Indemnitor and information which are reasonably relevant the Indemnitee and (y) unconditionally agree in writing to be fully responsible for all Losses indemnifiable pursuant to this ARTICLE VIII relating to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation Proceeding without any reservation of any material provided hereunder.rights or defenses; and
(ii) In if the event Indemnitor shall control the Indemnifying Party (x) elects not defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a Proceeding or ceasing to defend the Indemnified Party against a Third Party Claimsuch Proceeding if, whether by not giving the Indemnified Party timely notice of its desire pursuant to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party's election Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all Liabilities with respect to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claimsuch claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimwithout prejudice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Keystone Automotive Operations Inc)
Third Party Claims. (a) The If any party entitled to be indemnified hereunder (an "Indemnified Party agrees to give the Indemnifying Party Party") receives notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity Losses, such Indemnified Party shall give the party who may be sought under Section 7.1 become obligated to provide indemnification hereunder (the "Indemnifying Party") written notice describing such claim or fact in accordance with reasonable detail (the "Notice of Claim") promptly (and in any event within ten (10) Business Days after receiving any written notice procedures set forth in Section 7.2; provided, however, that from a third party). The failure by the Indemnified Party to timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party of any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunderliability, except to the extent that the Indemnifying Party will have been materially is prejudiced as a result of such delay. From and after by the delivery of a Indemnification Notice with respect Indemnified Party's failure to a Third provide timely notice hereunder.
(b) In the event any Indemnifying Party Claim, notifies the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt Party has given notice of the matter that the Indemnifying Party is assuming the defense thereof, true, correct and complete copies of all material notices and documents : (including court papersi) received by the Indemnifying Party will defend the Indemnified Party relating against the matter with counsel of its choice (and at its expense) reasonably satisfactory to the Third Indemnified Party; (ii) the Indemnified Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties may retain separate co-counsel at its sole cost and expense (except that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled responsible for the fees and expenses of the separate co-counsel to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect extent the Indemnified Party and/or reasonably concludes that the Indemnified Party's Affiliates other than as counsel the Indemnifying Party has selected has a result conflict of monetary damages. Unless interest); (iii) the Indemnified Party will have notified not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party of the existence of the condition set forth in the preceding sentence, which consent shall not be unreasonably withheld; and (iv) the Indemnifying Party will have thirty (30) days (or such lesser number not consent to the entry of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice judgment with respect to the matter, or enter into any settlement which does not include a Third Party Claim (provision whereby the “Defense Notice Period”) to notify plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, and, in a settlement or compromise which does not involve only the payment of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed money by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) , without the Indemnifying Party and prior written consent of the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would which consent shall not be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderunreasonably withheld.
(iic) In the event the Indemnifying Party (x) elects does not to defend notify the Indemnified Party against a Third Party Claim, whether by not giving within ten (10) Business Days after the Indemnified Party timely notice has received a Notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failedis assuming the defense thereof, then the Indemnified Party will shall have the right but not right, subject to the obligation provisions of this Article IX, to assume its own undertake the defense; it being understood that , compromise or settlement of such claim for the Indemnified account of the Indemnifying Party's right to indemnification for such Third . Unless and until the Indemnifying Party Claim will not be adversely affected by assuming assumes the defense of any claim, the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys' fees and other costs and expenses incurred in connection with the defense of any such Third action or proceeding. Each Indemnified Party Claimshall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party for such fees, costs and expenses to the extent that it shall be determined that it was not entitled to indemnification under this Article IX.
(d) In the event that the Indemnifying Party undertakes the defense of any claim, the Indemnifying Party will keep the Indemnified Party advised as to all material developments in connection with such claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or served in connection therewith.
Appears in 1 contract
Sources: Merger Agreement (Euroseas Ltd.)
Third Party Claims. (ai) The Indemnified Party agrees to give the Indemnifying Party notice in writing of Promptly after the assertion by any third party of any claim or demand made by, or against any other Action instituted by, any Person not a Indemnified Party to this Agreement (a “Third Third-Party Claim”) that, in respect the judgment of such Indemnified Party, may result in the incurrence by such Indemnified Party of Losses for which indemnity may such Indemnified Party would be sought under Section 7.1 entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Stockholder Representative a written notice describing in accordance with the notice procedures set forth in Section 7.2reasonable detail such Third-Party Claim; provided, however, that no delay on the part of the Indemnified Party in notifying the Stockholder Representative shall relieve the Participating Holders of any delay in delivering any Indemnification Notice will not affect the indemnification provided liability or obligations hereunder, except to the extent that the Indemnifying Party will Participating Holders have been materially prejudiced as a result thereby, and then only to such extent. The Indemnified Party shall have the right in its sole discretion at any time to conduct the defense of any such delay. From Third-Party Claim; provided, however, that (A) the Stockholder Representative shall have the right to receive copies of all pleadings, notices and after the delivery of a Indemnification Notice communications with respect to a any Third-Party Claim to the extent that receipt of such documents does not affect any privilege relating to such Indemnified Party and shall be entitled, at the Stockholder Representative’s expense, to participate in, but not conduct the defense of the Third Party Claim or settlement negotiations with respect to the Third-Party Claim, and (B) the Participating Holders shall not be liable to indemnify any Indemnified Party for any settlement of any such Third-Party Claim effected without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld, conditioned or delayed. If any such action or claim is settled with the prior written consent of the Stockholder Representative, or if there be a final judgment for the plaintiff in any such action, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in indemnification for the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation amount of any material provided hereunderLoss relating thereto.
(ii) In Neither the event Participating Holders nor the Indemnifying Stockholder Representative shall have any right to settle, adjust or compromise or conduct the defense of any Third-Party (x) elects not to defend Claim without the express written consent of the Indemnified Party against a Third Party Claim, whether by not giving whom the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Third-Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimbeen asserted.
Appears in 1 contract
Third Party Claims. Notice, Defense and Payment. Promptly following the earlier of (ai) The Indemnified Party agrees to give the Indemnifying Party receipt of notice in writing of the assertion commencement of any claim or demand made bya third-party claim, or any other Action instituted by(ii) receipt of information from a third-party alleging the existence of such a third-party claim, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity Indemnitee who believes that it is or may be sought entitled to indemnification by any Indemnitor under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice or 7.2 with respect to such third-party claim shall deliver a Third Party Claim, the Indemnified Party will deliver Notice of Claim to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies Indemnitor. Failure of all material notices and documents (including court papers) received by the Indemnified Party relating an Indemnitee timely to give a Notice of Claim to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of not release the procedures Indemnitor from its indemnity obligations set forth in this Section 7.3, it being 7.5 except to the intent extent that such failure adversely affects the ability of the parties Indemnitor to defend such Claim or materially increases the amount of indemnification which the Indemnitor is obligated to pay hereunder, in which event the amount of indemnification which the Indemnitee shall be entitled to receive shall be reduced to an amount which the Indemnitee would have been entitled to receive had such Notice of Claim been timely given. Indemnitee shall not settle or compromise any third-party claim in excess of $5,000 prior to giving a Notice of Claim to Indemnitor. In addition, if an Indemnitee settles or compromises any third-party claims prior to or within 30 business days after giving a Notice of Claim to an Indemnitor, the Indemnitor shall be released from its indemnity obligations to the extent that Seller will such settlement or compromise was not made in good faith and was not commercially reasonable. Within thirty days after receipt of such Notice of Claim (or sooner if the nature of such third-party claim so requires) the Indemnitor may (i) by giving written notice thereof to the Indemnitee, acknowledge liability for, and at its option elect to assume, the defense of such third-party claim at its sole cost and expense, or (ii) object to the claim of indemnification set forth in the Notice of Claim delivered by the Indemnitee; provided that if the Indemnitor does not within the same thirty day period give the Indemnitee written notice either objecting to such claim and setting forth the grounds therefor or electing to assume the defense, the Indemnitor shall be deemed to have acknowledged its responsibility to accept the defense and settlement of any CIE Claim; provided that in such eventits ultimate liability, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, andif any, for such third-party claim. Any contest of a third-party claim as to which the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, Indemnitor has elected to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may shall be required conducted by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred attorneys employed by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party Indemnitor and reasonably satisfactory to the extent Indemnitee; provided that the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, such proceedings and to employ counsel separate from the counsel employed be represented by the Indemnifying Party. The Indemnified Party will participate in any such defense at attorneys of its own expense unless (A) choosing at the Indemnifying Party Indemnitee’s sole cost and expense. If the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party Indemnitor assumes the defense of a Third Party Claim third-party claim, the Indemnitor may settle or compromise the third-party claim without the prior written consent of Indemnitee; provided that the Indemnitor may not agree to any such settlement pursuant to which any such remedy or relief, other than monetary damages for which the Indemnitor shall be responsible hereunder, shall be applied to or against the Indemnitee, without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld. If the Indemnitor does not assume the defense of a third-party claim for which it has acknowledged liability for indemnification under Section 7.1 or 7.2, the Indemnitee may require the Indemnitor to reimburse it on a current basis for its reasonable expenses of investigation, reasonable attorneys’ fees and reasonable out-of-pocket expenses incurred in defending against such third-party claim and the Indemnitor shall be bound by the result obtained with respect thereto by the Indemnitee, provided that the Indemnitor shall not be liable for any settlement effected without its consent, which consent shall not be unreasonably withheld. The Indemnitor shall pay to the Indemnitee in cash the amount for which the Indemnitee is entitled to be indemnified (if any) within fifteen days after the Indemnifying Party has failed to diligently pursue final resolution of such third-party claim (whether by settlement, a Third Party Claim it has assumedfinal non-appealable judgment of a court of competent jurisdiction or otherwise) or, and in the case of (A) any third-party claim as to which the Indemnitor has not acknowledged liability, within fifteen days after such Indemnitor’s objection has been resolved by settlement, compromise or (B), judicial decision. The Indemnitee shall make available to the Indemnitor or its representatives all such expenses incurred by records and other materials reasonably required for use in contesting any third-party claim and shall cooperate fully with the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate Indemnitor in the defense or prosecution of a Third Party Claimall such claims. Such cooperation will include If the retention and, upon the Indemnifying Party's requestIndemnitor does not so elect to defend any such third-party claims, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will Indemnitee shall have the right but not the no obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimdo so.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From obligations and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent liabilities of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice hereunder with respect to a Third Party Claim shall be subject to the following terms and conditions:
(a) The Indemnitee shall give the “Defense Notice Period”Indemnitor written notice of a Third Party Claim promptly after receipt by the Indemnitee of notice thereof and a second written notice ten (10) days after the Indemnitee's first written notice to the Indemnitor, and the Indemnitor may undertake the defense, compromise and settlement thereof by representatives of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify the Indemnified Indemnitor of such claim shall not relieve the Indemnitor of any liability that it may have with respect to such claim except to the extent the Indemnitor is prejudiced by such failure. The assumption of the defense, compromise and settlement of any such Third Party Claim by the Indemnitor shall not be an acknowledgment of the obligation of the Indemnitor to indemnify the Indemnitee with respect to such claim hereunder. If the Indemnitee desires to participate in, but not control, any such defense, compromise and settlement, it may do so at its election sole cost and expense. If, however, the Indemnitor fails or refuses to assume undertake the defense of such Third Party Claim. All Losses incurred Claim within fifteen (15) days after the second written notice of such claim has been given to the Indemnitor by the Indemnified Party prior Indemnitee, the Indemnitee shall have the right to any undertake the defense, compromise and settlement of such claim with counsel of its own choosing. In the circumstances described in the preceding sentence, the Indemnitee shall, promptly upon its assumption by the Indemnifying Party of the defense of such claim, make an Indemnification Claim as specified in Section 7.2 which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein.
(b) No settlement of a Third Party Claim will involving the asserted liability of the Indemnitor under this Article shall be reimbursed made without the prior written consent by or on behalf of the Indemnifying Party Indemnitor, which consent shall not be unreasonably withheld or delayed. Notwithstanding the immediately preceding sentences, consent shall be presumed in the case of settlements of $20,000 or less where the Indemnitor has not responded within ten (10) business days of the second notice of a proposed settlement, such second notice to be given ten (10) days after the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claimfirst notice. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed Indemnitor assumes the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions (a) no compromise or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed settlement thereof may be effected by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense Indemnitor without the Indemnitee's consent (which consent shall not be unreasonably withheld or delayed) unless (Ai) the Indemnifying Party there is no finding or admission of any violation of law and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those no effect on any other claim that may be available made against the Indemnitee, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitor, and (iii) the compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnifying Party Indemnitee of a release, in form and substance satisfactory to the Indemnitee, from all liability in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis (b) the Indemnitee shall have no liability with respect to provide additional information and explanation of any material provided hereundercompromise or settlement thereof effected without its consent.
(iic) In connection with the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a defense, compromise or settlement of any Third Party Claim, whether the parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by not giving any party hereto and, as may reasonably be related to any such claim or action, shall provide access to (i) the Indemnified Party timely notice counsel, accountants and other representatives of its desire each party and to so defend or otherwise; (yii) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claimproperties, fails to conduct the defense personnel, books, tax records, contracts, commitments and all other business records of such Third Party Claim other party during normal business hours and will furnish to such other party copies of all such documents, in a each case as may reasonably diligent manner within twenty be requested (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failedcertified, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimif requested).
Appears in 1 contract
Sources: Stock Purchase Agreement (Intertape Polymer Group Inc)
Third Party Claims. Within fifteen (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (1015) Business Days after an Indemnitee receives written notice of any third party claim or the Indemnified Party's receipt thereofcommencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, truesuch Indemnitee shall, correct if a claim in respect thereof is to be made against an Indemnitor under this Article VII, notify such Indemnitor in writing in reasonable detail of such claim or action and complete include with such notice copies of all material notices and documents (including court papers) served on or received by the Indemnified Party relating to the Third Party ClaimIndemnitee from such third party. Any CIE Claim shall be considered a Third Party Claim for purposes Upon receipt of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claimnotice, the Indemnifying Party will Indemnitor shall be entitled to participate in the defense thereof and, if it so electssuch claim or action, to assume the defense thereofthereof with counsel reasonably satisfactory to the Indemnitee, unless and to settle or compromise such Third Party Claim claim or action, provided that such settlement or compromise shall be effected only with the consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed, if (i) the settlement is reasonably likely to materially other than for monetary damages, and the remedies, in the Indemnitees’s reasonable judgment, could adversely affect it, or (ii) the Indemnified Party and/or Indemnitor has not agreed that the Indemnified Party's Affiliates other than as claim with respect thereto is a result of monetary damagesfully indemnifiable claim hereunder, or (iii) the Indemnitee has elected to be represented by separate counsel pursuant to clauses (i)-(iii) in the following sentence. Unless After notice to the Indemnified Party will have notified the Indemnifying Party Indemnitee of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its Indemnitor’s election to assume the defense of such Third Party Claim. All Losses claim or action (which notice shall include an acknowledgement that the Indemnitee is entitled to indemnification hereunder for such claim), the Indemnitor shall not be liable to the Indemnitee under this Article VII for any legal or other expenses subsequently incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of Indemnitee in connection with the defense thereof other than reasonable costs of a Third Party Claim will be reimbursed by investigation, unless the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party fromIndemnitee employs separate counsel, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that which it elects to defend such Third Party Claim, it will shall have the right to so defend at its expensedo if either (i) such claim or action involves remedies other than monetary damages and such remedies, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereofIndemnitee’s reasonable judgment, including the opportunity to participate in any discussions or correspondence with any Governmental Entitycould adversely affect such Indemnitee, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (Aii) the Indemnifying Party and the Indemnified Party are both named parties Indemnitee may have available to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of it one or more defenses or counterclaims that which are inconsistent with one or more of those that defenses or counterclaims which may be available to alleged by the Indemnifying Party in respect thereof Indemnitor, or (Biii) such claim or action is brought by a Governmental Authority, and in any such event the Indemnified Party assumes fees and expenses of such separate counsel shall be paid by the Indemnitor. If the Indemnitor does not elect to assume the defense of such claim or action within fifteen (15) Business Days of the Indemnitee’s delivery of notice of such a Third Party Claim after claim or action by delivery of a written notice assuming control of the Indemnifying Party has failed defense, the Indemnitee shall be entitled to diligently pursue a Third Party Claim assume the defense thereof. Unless it has assumedbeen conclusively determined through a final judicial determination (or settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this Article VII, the Indemnitee shall act reasonably and in accordance with its good faith business judgment with respect to such defense, and shall not settle or compromise any such claim or action without the consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. The Parties hereto agree to render to each other such assistance as may reasonably be requested in order to insure the case proper and adequate defense of (A) any such claim or (B)action, all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and including making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderrelevant materials or to testify at any proceedings relating to such claim or action.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Convertible Preference Share Purchase Agreement (Alibaba Group Holding LTD)
Third Party Claims. (a) The Promptly after receipt by an Indemnified Party agrees to give the Indemnifying Party of notice in writing of the assertion commencement of any claim action or demand made by, or any other Action instituted by, any Person not claim by a Party to this Agreement third party (a “Third Party Claim”) which may give rise to Damages, the Indemnitor may assume and diligently pursue the defense thereof with counsel reasonably satisfactory to such Indemnified Party and the Indemnified Party shall cooperate in respect of which indemnity may be sought under Section 7.1 all reasonable respects in accordance with such defense. The Indemnified Party shall have the notice procedures set forth right to employ separate counsel in Section 7.2any action or claim and to participate in the defense thereof; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except fees and expenses of counsel employed by the Indemnified Party shall be at the expense of the Indemnitor only if such counsel is retained pursuant to the extent following sentence or if the Indemnifying Party will have been materially prejudiced as a result employment of such delaycounsel has been specifically authorized by the Indemnitor, and provided, further, that in the event there are multiple Indemnified Parties in any matter the Indemnitor WEST\229704094.6 #PageNum# shall be obligated to pay the fees and expenses of only one counsel unless an Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the other Indemnified Parties. From and If the Indemnitor does not notify the Indemnified Party within fifteen (15) days after receipt of the delivery Claim Certificate (or such shorter period of a Indemnification Notice with respect time if the Indemnified Party is required to a Third Party Claimtake action by applicable law) that the Indemnitor elects to undertake the defense thereof, the Indemnified Party will deliver or if the named parties to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents any such action (including court papersany impleaded parties) received include both such Indemnified Party and the Indemnitor and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party relating which are not available to the Third Party Claim. Any CIE Claim shall Indemnitor, or available to the Indemnitor, but the assertion of which would be considered a Third Party Claim for purposes adverse to the interests of the procedures set forth in this Section 7.3Indemnitor, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend at its expense, the expense of the Indemnitor the claim with counsel selected by of its choosing. Prior to any settlement, the Indemnifying Indemnified Party that is reasonably acceptable shall send a written notice to the Indemnitor of any proposed settlement of any claim, which settlement the Indemnitor may reject, in its reasonable judgment within fifteen (15) days of receipt of such notice. Failure to reject such notice within such fifteen (15)-day period shall be deemed an acceptance of such notice. Whether the Indemnified Party. Once , on the Indemnifying Party has duly assumed one hand, or the Indemnitor, on the other hand, shall have undertaken the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined Person that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes has undertaken the defense of a Third Party Claim after shall not admit any liability with respect to, consent to the Indemnifying Party has failed to diligently pursue a entry of any judgment, or settle, compromise or discharge, any Third Party Claim it has assumed, and in without the case prior written consent of (A) the Indemnitor or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend , respectively (which consent in either case shall not be unreasonably withheld, delayed or conditioned). So long as the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming Indemnitor is conducting the defense of a Third Party Claim, fails to conduct the defense of such any Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from accordance with the Indemnified Party to the effect that the Indemnifying Party has so failedterms hereof, the Indemnified Party will agrees that Indemnitor shall have full and complete control over the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense conduct of such Third Party Claimproceeding.
Appears in 1 contract
Sources: Securities Purchase Agreement (FMC Technologies Inc)
Third Party Claims. (a) The Indemnified Party agrees If any person entitled to give the Indemnifying Party indemnification ------------------ under this Agreement (an "Indemnitee") receives notice in writing of the assertion of any claim or demand made by, of the commencement of any action or proceeding by any other Action instituted by, any Person person that is not a Party party to this Agreement or a subsidiary of any such party (a “"Third Party Claim”") in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of against such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimIndemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents Indemnitee shall promptly provide written notice thereof (including court papers) received by the Indemnified Party relating to a description of the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement an estimate of any CIE Claim; provided that in Indemnifiable Losses (which estimate shall not be conclusive as to the final amount of such event, Seller will use reasonable best efforts not Indemnifiable Losses)) to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses party required to any of provide indemnification under this Agreement (the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b"Indemnifying Party") (i) With respect to a Third Party Claim, within 10 calendar days after the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified PartyIndemnitee's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense notice of such Third Party Claim. All Losses incurred Any delay by the Indemnified Party prior to any assumption by Indemnitee in providing such written notice shall not relieve the Indemnifying Party of any liability for indemnification hereunder except to the defense extent that the rights of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the are materially prejudiced by such delay.
(b) The Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will shall have the right to so defend participate in or, by giving written notice to the Indemnitee, to assume the defense of any Third Party Claim at such Indemnifying Party's expense and by such Indemnifying Party's own counsel (which shall be reasonably satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith in such defense. The Indemnitee may retain its expenseown counsel with respect to such Third Party Claims, with counsel selected by but the Indemnifying Party that is reasonably acceptable to shall not be liable for any legal expenses incurred by the Indemnified Party. Once Indemnitee after the Indemnitee has received notice of the Indemnifying Party has duly assumed Party's intent to assume the defense of a Third Party Claim, unless the Indemnified named parties to such Third Party will have the right, but not the obligation, to participate in the defense thereof, Claim (including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (Aimpleaded parties) include both the Indemnifying Party and the Indemnified Party are both named parties to the proceedings Indemnitee and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to them. If the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed fails to take steps reasonably necessary to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) 10 days after receiving written of receipt of notice from the Indemnified Party to Indemnitee that such steps are not being taken, the effect that Indemnitee may assume its own defense and the Indemnifying Party shall be liable for the reasonable costs thereof.
(c) The Indemnifying Party may settle any Third Party Claim which it has elected to defend so failed, long as the written consent of the Indemnitee to such settlement is first obtained (which consent shall not be unreasonably withheld). The Indemnified Party will have shall not settle any Third Party Claim without the right but written consent of the Indemnifying Party unless the Indemnifying Party elects not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for defend such Third Party Claim.
(d) In the event that a Third Party Claim will not involves a proceeding as to which both the UPC Group and the Overnite Group may be adversely affected by assuming Indemnifying Parties, the parties hereto agree to cooperate in good faith in a joint defense of such Third Party Claim.
(e) Notwithstanding subsections (b), (c), and (d) of this Section 8, the provisions of Article IV, V, and VI of that certain Tax Allocation Agreement entered into by Union Pacific Corporation, Overnite, OHI, and OTC of even date herewith (the "Tax Allocation Agreement") shall control and supercede this Agreement with respect to any Third Party Claim by a taxing authority.
Appears in 1 contract
Sources: Stock Purchase and Indemnification Agreement (Overnite Corp)
Third Party Claims. (a) The In the event that an Indemnified Party agrees to give the Indemnifying Party notice in writing becomes aware of the assertion of any a third party claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in respect an indemnification claim pursuant to this Article VIII, such Indemnified Party shall notify the Shareholder Representative (or, in the event indemnification is being sought hereunder directly from a Seller, such Seller) of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2such Third Party Claim; provided, however, that any delay in delivering any Indemnification Notice will the failure to give prompt notice shall not affect the indemnification provided hereunder, hereunder except to the extent the Shareholder Representative, on behalf of the Indemnifying Party will have Persons, has been actually and materially prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying PartyThe Shareholder Representative shall, within ten (10) Business Days after the Indemnified Party's of receipt thereofof such notice, true, correct and complete copies of all material notices and documents (including court papers) received by the notify such Indemnified Party relating whether the Shareholder Representative desires to undertake and conduct the defense of such Third Party Claim. Any CIE Claim shall be considered (provided that the Shareholder Representative may not assume the defense of a Third Party Claim for purposes (i) unless the then remaining amount of the procedures set forth Escrow Fund (together with the remaining amounts in this Section 7.3, it being the intent Shareholder Representative Expense Fund) would be sufficient to satisfy all indemnification obligations that could reasonably be expected to become payable in respect of the parties that Seller will assume Third Party Claim if adversely determined and all other pending or unsatisfied claims made on the Escrow Fund, plus all of the legal fees and expenses reasonably expected to be incurred by the Shareholder Representative, (ii) if such Third Party Claim seeks any injunction, declaratory judgment or other non-monetary order or equitable relief against any Indemnified Party, (iii) if the litigation or outcome of such Third Party Claim would reasonably be expected to impact Parent’s or Purchaser’s business in addition to the monetary damages paid in the claims (including, without limitation, any claim involving the Intellectual Property of the Company) or (iv) if counsel to the Shareholder Representative is not reasonably satisfactory to Parent). If the Shareholder Representative assumes the defense and settlement of a Third Party Claim, notwithstanding any CIE Claim; provided that in other provision of this Agreement, the Sellers shall be liable for the full amount of all Losses incurred by the Indemnified Parties arising out of or relating to such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, Third Party Claim (and, for the avoidance of doubt, if any such exposure is created that results in Losses without regard to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties limitations provided for such Losses pursuant in this Article VIII) and the Shareholder Representative shall take all actions necessary or appropriate to Section 7.1(a)(ii).
(b) (i) With respect to a defend against the Third Party Claim. Parent or Purchaser may, the Indemnifying Party will be entitled to at its own expense, participate in the defense thereof and, if it so elects, to assume the defense thereof, unless of any such Third Party Claim is reasonably likely to materially and adversely affect assumed by the Shareholder Representative. In the event any Indemnified Party and/or shall conclude that there may be legal defenses or rights available to it which are different from, in actual or potential conflict with, or additional to those available to the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Shareholder Representative, such Indemnified Party will have notified or Parties shall be entitled to select separate counsel to act on its behalf and the Indemnifying Party fees and expenses of such separate counsel shall be additional indemnifiable Losses under this Article VIII; provided, however, that if such actual or potential conflict arises between the existence positions of Parent and the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedingsShareholder Representative, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim conditions in clauses (i) through (iv) above is satisfied, then Parent or Purchaser shall have the “Defense Notice Period”) to notify the Indemnified Party of its election right to assume the control of the defense of such the Third Party Claim. All Losses incurred by The Shareholder Representative may not settle any matter (in whole or in part) without the consent of Parent or Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed (provided that Parent or Purchaser may withhold consent to any settlement in its discretion unless such settlement (A) includes a complete and unconditional release of Parent, Purchaser and/or the Indemnified Party prior to Parties, (B) excludes any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred injunctive or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable non-monetary relief applicable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental EntityParties, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in (C) excludes any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entityfinding or admission of fault, arbitrator liability or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation any violation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedlaw), and in the case of (A) which consent shall be deemed to have been given unless Parent or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner Purchaser shall have objected within twenty (20) days after receiving a written notice from request for such consent by the Indemnified Party Shareholder Representative. If the Shareholder Representative does not elect to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for defend against such Third Party Claim will not in accordance with this Section 8.6, then the Shareholder Representative, on behalf of the Sellers, shall be adversely affected by assuming the entitled to participate in any defense of such Third Party Claim, at its expense and without recourse to the Escrow Fund; provided, however, that Parent and/or Purchaser shall have full control over the litigation, including settlement and compromise thereof; provided, further that any such settlement shall not be determinative of the existence of or amount of Losses relating to such Third Party Claim, except with the consent of the Shareholder Representative, which consent shall not be unreasonably, withheld, conditioned or delayed and which consent shall be deemed to have been given unless the Shareholder Representative shall have objected within twenty (20) days after a written request for such consent by Parent or Purchaser. If there is a Third Party Claim that, if adversely determined would give rise to a right of recovery for Losses hereunder, then any amounts paid, sustained, suffered, incurred or accrued by the Indemnified Parties in defense of such Third Party Claim, regardless of the outcome of such claim, shall be deemed Losses hereunder, provided however, that the foregoing shall not impact the ability of the Shareholder Representative to object to the amount of any such Losses pursuant to Section 8.5 hereof. The Escrow Agent shall not disburse any portion of the Escrow Fund to any third party except in accordance with joint written instructions received from Parent or Purchaser, on the one hand, and the Shareholder Representative, on the other hand. In the event that the Shareholder Representative has consented to any such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this Article VIII to the amount of any Third Party Claim by Purchaser against the Escrow Fund, or against the Sellers directly, as the case may be, with respect to such settlement.
Appears in 1 contract
Sources: Share Transfer Agreement (Dolby Laboratories, Inc.)
Third Party Claims. In the event Acquirer becomes aware of a third-party claim (aincluding any action or proceeding commenced or threatened to be commenced by any third-party) The Indemnified that Acquirer reasonably believes may result in an indemnification pursuant to Section 8.1 (any such claim, a “Third-Party agrees to give Claim”), Acquirer shall promptly (and in any event no later than [***] days after the Indemnifying Party notice Acquirer becomes aware of such event) notify the Securityholders’ Agent in writing of such Third-Party Claim (such notice, the assertion “Claim Notice”). The Claim Notice shall be accompanied by copies of any claim or demand made by, or any other Action instituted by, any Person not a relevant and material documentation submitted by the third party making such Third-Party Claim and shall describe in reasonable detail (to this Agreement (a “Third the extent known by Acquirer) the facts constituting the basis for such Third-Party Claim”) in respect Claim and the amount of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2claimed Damages; provided, however, that any no delay or failure on the part of Acquirer in delivering a Claim Notice shall relieve the Company Securityholders from any Indemnification Notice will not affect the indemnification provided hereunder, liability hereunder except and only to the extent the Indemnifying Party will they shall have been actually and materially prejudiced as a result of such delaydelay or failure. From and Within [***] days after the delivery receipt of a Indemnification Notice with respect to a Third Party Claimany Claim Notice, the Indemnified Securityholders’ Agent may, upon written notice thereof to Acquirer, assume control of the defense of the Third-Party will deliver Claim referred to therein at the Company Securityholders’ sole cost and expense). Notwithstanding anything to the Indemnifying Partycontrary contained herein, within ten (10) Business Days after the Indemnified Party's receipt thereofSecurityholders’ Agent shall not be entitled to assume or control the investigation, true, correct and complete copies defense or prosecution of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third such Third-Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition Damages set forth in the preceding sentenceThird-Party Claim is more than the remaining available Indemnity Escrow Funds, (ii) at the time of assumption or thereafter, the Indemnifying Securityholders’ Agent objectively fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently, (iii) such Third-Party will have thirty Claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (30iv) days the Securityholders’ Agent or any Company Securityholder is also a party to such Third-Party Claim and the Acquirer Indemnified Party determines in good faith based on consultation with counsel that joint representation would be inappropriate, (v) such Third-Party Claim relates to or arises in connection with any criminal or regulatory proceeding, action, indictment, allegation or investigation, (vi) a Significant Payor, Significant Supplier or Significant Originator is a party to such lesser number of days set forth Third-Party Claim, (vii) any Third-Party Claim arising in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedingsconnection with Taxes, or any regulatory inquiry or investigation(viii) from receipt an adverse resolution of the Indemnification Notice with respect Third-Party Claim would reasonably be expected to have a Third material adverse effect on the (A) goodwill or the reputation of any Acquirer Indemnified Party or the future conduct of any of their respective businesses, (B) the assets, liabilities, revenues, or expenses of any Acquirer Indemnified Party or (C) the ability of any Acquirer Indemnified Party to exploit any of its or its Affiliates’ Intellectual Property Rights. The party not controlling the defense of such Third-Party Claim (the “Defense Notice PeriodNon-Controlling Party”) to notify may participate (but not control) therein at its own expense; provided, however, that if the Indemnified Party Securityholders’ Agent assumes control of its election to assume the defense of such Third Third-Party ClaimClaim and the Acquirer has reasonably determined, based on advice of counsel, that the Company Securityholders and Acquirer have materially conflicting interests or different defenses available with respect to such Third-Party Claim which cause Acquirer to hire its own separate counsel with respect to such proceeding, the reasonable fees and expenses of counsel to Acquirer shall be considered “Damages” for purposes of this Agreement. All Losses incurred The Securityholders’ Agent shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim without the prior written consent of Acquirer, which shall not be unreasonably withheld or delayed; provided, however, that the consent of Acquirer shall not be required with respect to any such settlement or judgment if (x) such settlement or judgment (I) involves no admission of wrongdoing by the Acquirer Indemnified Party prior or its Affiliates, and (II) the sole relief provided is monetary damages and (y) the Securityholders’ Agent agrees in writing to pay or cause to be paid (on behalf of the Company Securityholders) any amounts payable pursuant to such settlement or judgment (net of the applicable deductible amount specified in Section 8.5(b)) and such amounts payable are less than the remaining Indemnity Escrow Funds, and such settlement or judgment includes a complete release of Acquirer and its Affiliates, directors, officers, employees and representatives from further liability and has no other adverse effect on Acquirer or any other any Acquirer Indemnified Party. If Acquirer agrees to any assumption by settlement of, or the Indemnifying entry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Securityholders’ Agent, which shall not be unreasonably withheld or delayed, then the amount of such settlement shall not be determinative of the amount of Damages indemnifiable hereunder. Acquirer and the Securityholders’ Agent shall cooperate in order to ensure the proper and adequate defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Third-Party Claim, it will have the right including by providing reasonable access to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entityeach other’s relevant books and records, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claimemployees. Such cooperation will shall include the retention and, upon the Indemnifying Party's request, and the provision to the Indemnifying Party other of books and records and information which that are reasonably relevant to such Third Third-Party Claim, and making employees and representatives available on a mutually convenient basis during normal business hours to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects ; provided, however, that foregoing will not require Acquirer to defend the Indemnified Party against a Third Party Claimprovide any access to any information, whether by not giving the Indemnified Party timely notice books and records or employees of Acquirer or any of its desire Subsidiaries (including the Surviving Corporation) if and to so defend the extent any Law requires Acquirer to restrict such access or otherwise; if such access would result in the waiver of any attorney-client privilege, the work product doctrine or similar privilege or protection applicable to such information or documents. Acquirer and the Securityholders’ Agent shall use reasonable commercial efforts to avoid production of confidential and attorney-client privileged information (y) is not entitled consistent with applicable Law), and to defend the Third cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); preserve any applicable attorney-client or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claimwork-product privileges.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Castle Biosciences Inc)
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party If any Indemnitee receives notice in writing of the assertion or commencement of any claim Legal Proceeding made or demand made by, or any other Action instituted by, brought by any Person who is not a Party party to this Agreement or an Affiliate of a party to this Agreement or a representative of the foregoing (a “Third Third-Party Claim”) against such Indemnitee with respect to which the Indemnitor is obligated to provide indemnification under this Agreement, the Indemnitee shall give the Indemnitor reasonably prompt written notice thereof, but in respect any event not later than thirty (30) days after receipt of which indemnity such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnitor of its indemnification obligations, except and only to the extent that the Indemnitor forfeits material rights or defenses by reason of such failure. Such notice by the Indemnitee shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sought under Section 7.1 sustained by the Indemnitee. The Indemnitor shall have the right to participate in, or by giving written notice to the Indemnitee (which notice shall irrevocably acknowledge the Indemnitor’s responsibility for such Third-Party Claim without reservation of any rights but subject to the limitations contained in accordance with this Article 7), to assume the notice procedures set forth defense of any Third-Party Claim at the Indemnitor’s expense and by the Indemnitor’s own counsel, and the Indemnitee shall cooperate in Section 7.2good faith in such defense; provided, however, that such Indemnitor shall not have the right to defend or direct the defense of any delay such Third-Party Claim that (i) is asserted directly by or on behalf of a Person that is a customer of Company, (ii) seeks an injunction or other equitable relief against the Indemnitee, or (iii) as to which the Indemnitee believes an adverse determination would result in delivering Losses that would exceed the limitations on the right of the Indemnitee to indemnification contained in Section 7.3, as the case may be. In the event that the Indemnitor assumes the defense of any Indemnification Notice will not affect Third-Party Claim, subject to Section 7.7(b), it shall have the indemnification provided hereunderright to take such action as it deems necessary to avoid, except dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnitee. The Indemnitee shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it subject to the extent Indemnitor’s right to control the Indemnifying Party will have been materially prejudiced as a result defense thereof. The fees and disbursements of such delaycounsel shall be at the expense of the Indemnitee, provided, however, that if in the reasonable opinion of counsel to the Indemnitee, (A) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnitor; or (B) there exists a conflict of interest between the Indemnitor and the Indemnitee that cannot be waived, the Indemnitor shall be liable for the reasonable fees and expenses of counsel to the Indemnitee in each jurisdiction for which the Indemnitee determines counsel is required. From and after If the delivery Indemnitor elects not to compromise or defend such Third-Party Claim, fails to promptly notify the Indemnitee in writing of a Indemnification Notice with respect its election to a Third defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third-Party Claim, the Indemnified Indemnitee may, subject to Section 7.7(b), pay, compromise, defend such Third-Party will deliver to the Indemnifying PartyClaim and seek indemnification for any and all Losses based upon, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party arising from or relating to the Third such Third-Party Claim. Any CIE Claim Stockholders’ Agent and Purchaser shall be considered a Third Party Claim for purposes of the procedures set forth cooperate with each other in this Section 7.3, it being the intent of the parties that Seller will assume all reasonable respects in connection with the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Third-Party Claim, including keeping the Indemnifying party not controlling the defense of such Third-Party will Claim advised of the status of such Third-Party Claim and the defense thereof, making available (subject to the provisions of any confidentiality agreement) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim. If the Indemnitor is not handling the defense, it shall be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party cost and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderexpense.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Purple Innovation, Inc.)
Third Party Claims. (ai) The Any Indemnified Party agrees to give seeking indemnification hereunder shall notify the Indemnifying Party notice in writing of the assertion promptly (but in no event later than 30 calendar days) after receiving written notice of any third-party Action or other claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement against it (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with ), describing the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver amount thereof (if known and quantifiable), and the basis thereof (such notice sent to the Indemnifying Party, within ten (10) Business Days after a “Notice of Claim”); provided, that the Indemnified Party's receipt thereof, true, correct and complete copies failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of all material notices and documents (including court papers) received by the Indemnified Party relating its obligations hereunder except to the Third Party Claim. Any CIE Claim extent such failure shall be considered a Third Party Claim for purposes of have actually prejudiced the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)Indemnifying Party.
(b) (iii) With respect to a any Third Party Claim, the Indemnifying Party will shall have the sole and absolute right, upon written notice thereof to the Indemnified Party provided within twenty (20) business days of its receipt of the Notice of Claim, at its option and at its own expense, to be entitled represented by counsel of its choice and to control and assume the defense of such Third Party Claim; provided, however, that the Indemnified Party may participate in any such Third Party Claim with counsel of its choice and at its own expense. If the defense thereof and, if it so elects, Indemnifying Party elects to assume the defense thereofof any Third Party Claim, unless such election will constitute an admission by the Indemnifying Party that it is responsible under this Article 8 to the Indemnified Party with respect to such Third Party Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third Party Claim is reasonably likely and cooperate in such a manner as to materially preserve in full (to the extent possible) the confidentiality of all confidential information and adversely affect the attorney-client and work-product privileges. Any out-of-pocket expenses incurred by the Indemnified Party and/or in providing such cooperation will be reimbursed by the Indemnified Indemnifying Party's Affiliates other than as a result of monetary damages. Unless Notwithstanding the Indemnified Party will have notified foregoing, to the extent that (i) the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election elects not to assume the defense of such Third Party Claim. All Losses incurred by Claim (or fails to elect such defense within the twenty (20) Business Day period referred to above) and the Indemnified Party prior to defends against or otherwise handles any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have (ii) in the right to so defend at its expense, with reasonable opinion of counsel selected by the Indemnifying Party that is reasonably acceptable to for the Indemnified Party. Once the Indemnifying Party has duly assumed the defense , there is a conflict or potential conflict of a Third Party Claim, interest between the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(iiiii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a such Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend Claim involves a claim for damages other than monetary damages or otherwise; (yiv) is not entitled to defend the Third Party Claim as a result relates to or otherwise arises in connection with any criminal or regulatory enforcement Action, then in each case (A) the Indemnified Party may retain counsel of its own choosing, with the reasonable fees and expenses of one law firm for the Indemnified Parties and any required local counsel being at the expense of the Indemnifying Party, and the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct may control and assume the defense of such Third Party Claim and (B) the Indemnifying Party may participate in a reasonably diligent manner within twenty (20) days after receiving written notice from such defense with counsel of its choice and at its own expense. Without the consent of the other party, neither the Indemnifying Party nor the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such may settle any Third Party Claim will which settlement either
(1) obligates the other party to pay money, perform obligations or admit liability or (2) does not be adversely affected by assuming the defense contain a full release of all claims against such Third Party Claimother party.
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Claims. (a) The Indemnified Party agrees Upon receipt of a Claim Notice in respect of a Third‑Party Claim, subject to give the limitations set forth herein, the Indemnifying Party may, at its option by delivering written notice in writing to the applicable Indemnified Parties within thirty (30) days of receipt of such Claim Notice, assume and control the investigation and defense of, at its sole cost and expense and with its own counsel of recognized standing and competence reasonably acceptable to such Indemnified Party, any such Third‑Party Claim and shall be entitled to assert any and all defenses available to the Indemnified Party to the fullest extent permitted by applicable Law; provided that, notwithstanding the foregoing, no Indemnifying Party shall be entitled to assume or control the investigation, defense or prosecution of such Third‑Party Claim if (i) substantially all of the assertion of any claim or demand made by, or any other Action instituted by, any Person damages associated with such Third‑Party Claim are not a Party reasonably expected to this Agreement be indemnifiable hereunder (a “Third Party Claim”) including in respect of the event the amount in dispute is reasonably likely to exceed the maximum amount for which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced can then be liable pursuant to this Article IX in light of the limitations on indemnification contained herein), (ii) at the time of assumption and thereafter, the Indemnifying Party fails to demonstrate its ability to conduct the investigation, defense or prosecution actively and diligently, (iii) such claim seeks non‑monetary, equitable or injunctive relief or alleges any violation of criminal Law, (iv) the Indemnifying Party is also a party to such Third‑Party Claim and the Indemnified Party determines in good faith after consultation with outside counsel that joint representation would be inappropriate, or (v) the Indemnifying Party does not agree in writing that it is obligated (without reservation of any rights) to pay all Losses arising from or related to such claim subject only to the limitations on indemnification contained herein.
(b) If the Indemnifying Party shall undertake to defend any such Third‑Party Claim, it shall (i) indemnify and advance fees and expenses of the Indemnified Party and keep the Indemnified Party indemnified against any and all Losses suffered or incurred by the Indemnified Party as a result of such delay. From election; and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10ii) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to timely notify the Indemnified Party of its intention to do so in accordance with this Section 9.5(b), and the Indemnified Party and the Indemnifying Party each shall, and shall cause each of their respective controlled Affiliates, and each of their respective directors, officers, and employees (and otherwise advise their respective agents, representatives and non‑controlled Affiliates) to, use its commercially reasonable efforts to cooperate fully in the defense of such Third‑Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third‑Party Claim. The Indemnifying Party shall not settle, compromise or discharge, or consent to the entry of any judgment with respect to, any such Third‑Party Claim without the prior written consent of the Indemnified Party unless the terms of such settlement, compromise, discharge or judgment, as applicable, (i) (A) consist solely of monetary damages for which the Indemnified Parties are entitled to full indemnification or advancement of fees and expenses under this Agreement, (B) do not impose on any Indemnified Party or its Affiliates any continuing obligation, and (C) would not reasonably be expected to have a future adverse effect on any Indemnified Party or its Affiliates, (ii) include, as a condition precedent thereto, a binding unconditional, irrevocable written release of the Indemnified Parties and their respective Affiliates from all Liability with respect to such claim given by each claimant or plaintiff to such claim, (iii) do not require any Indemnified Party or its Affiliates to (A) admit any wrongdoing or Liability or acknowledge any rights of any Person, (B) take or refrain from taking any action or (C) waive any rights that the Indemnified Party may have against the Person making the Third‑Party Claim.
(c) Notwithstanding an election by the Indemnifying Party to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Third‑Party Claim, the Indemnified Party will shall have the right, but not the obligation, right to employ separate counsel selected by it and to participate in the defense thereofof such Action or proceeding, including and the opportunity Indemnified Party shall bear the fees, costs and expenses of such separate counsel and participation. In any event, the Indemnified Party and Indemnifying Party and their respective counsel(s) shall cooperate in the defense of any Third‑Party Claim subject to this Article IX and keep such Persons informed of all developments relating to any such Third‑Party Claims, and provide copies of all relevant correspondence and documentation relating thereto.
(d) If the Indemnifying Party receiving notice of a Third‑Party Claim does not timely elect to defend any Third‑Party Claim in accordance with this Section 9.5(d), (x) the Indemnifying Party may participate in any discussions or correspondence with any Governmental Entitythe investigation, defense and prosecution of such Third‑Party Claim, at such Indemnifying Party's sole cost and expense, and to employ counsel separate from (y) the counsel employed by Indemnified Party shall have the right, at the Indemnifying Party's sole cost and expense, to defend and control such Third‑Party Claim. The Indemnified Party will participate in shall not settle, compromise or discharge, or admit any such defense at its own expense unless (A) liability with respect to, any Third‑Party Claim without the written consent of the Indemnifying Party and (such consent not to be unreasonably withheld or delayed); provided, that the Indemnified Party are both named parties to may settle, compromise or discharge, or admit liability with respect to, any Third‑Party Claim without the proceedings and written consent of the Indemnifying Party if pursuant to, or as a Governmental Entityresult of, arbitrator such settlement, compromise or arbitration paneldischarge, as applicableor admission of liability, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party would be obligated to pay amounts equal to or in excess of one or more defenses or counterclaims the amounts that are inconsistent with one or more of those that may be available to the Indemnifying Party would be obligated to pay in respect thereof or (B) the Indemnified Party assumes the defense connection therewith. If there is a Third‑Party Claim that, if adversely determined would give rise to a right of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedrecovery for Losses hereunder, and in the case of (A) or (B), all such expenses then any amounts incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty claim (20) days after receiving written notice from including reasonable fees and expenses of investigation, legal fees and other expenses), regardless of the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense outcome of such Third Party Claimclaim, shall be deemed indemnifiable "Losses" hereunder.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party If any Indemnitee receives notice in writing of the assertion of any claim or demand made byof the commencement of any action or proceeding by any entity that is not either a Surviving Corporation Indemnitee or a Verizon Indemnitee (each, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) against such Indemnitee, with respect to which an Indemnitor is obligated to provide indemnification under this Agreement, the Indemnitee will give such Indemnitor prompt written notice thereof, but in respect any event not later than ten calendar days after receipt of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2of such Third Party Claim; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except failure of an Indemnitee to notify the Indemnitor within the time period set forth herein shall only relieve the Indemnitor from its obligation to indemnify to the extent that the Indemnifying Party will have been Indemnitor is materially prejudiced by such failure or delay (whether as a result of such delaythe forfeiture of substantive rights or defenses or otherwise). From and after the delivery Upon receipt of a Indemnification Notice with respect to notification of a Third Party Claim, the Indemnified Party will deliver Indemnitor shall be entitled, upon written notice to the Indemnifying PartyIndemnitee, within ten (10) Business Days after to assume the Indemnified Party's receipt thereof, true, correct investigation and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating defense thereof at such Indemnitor’s expense with counsel reasonably satisfactory to the Indemnitee; provided, however, that the Indemnitor shall not have the right to assume the defense of any Third Party Claim. Any CIE Claim in the event such Third Party Claim is primarily for injunctive relief or criminal penalty of the Indemnitee, in which case the reasonable fees and expenses of counsel to the Indemnitee in connection with such Third Party Claim shall be considered a Third Party Claim “Losses” for purposes of this Agreement. Whether or not the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will Indemnitor elects to assume the investigation and defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled Indemnitee shall have the right to employ separate counsel and to participate in the defense thereof and, if it so elects, to assume the investigation and defense thereof; provided, however, that the Indemnitee shall pay the fees and disbursements of such separate counsel unless (1) the employment of such Third Party Claim is reasonably likely to materially and adversely affect separate counsel has been specifically authorized in writing by the Indemnified Party and/or Indemnitor; (2) the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election Indemnitor has failed to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party Claim within 20 calendar days after receipt of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, notice thereof with counsel selected by the Indemnifying Party that is reasonably acceptable satisfactory to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions such Indemnitee; or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense at its own expense unless (A3) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings proceeding in which such Third Party Claim has been asserted include both the Indemnitor and a Governmental Entitysuch Indemnitee and, arbitrator or arbitration panelin the reasonable judgment of counsel to such Indemnitee, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of there exists one or more good faith defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party Indemnitee that are in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection conflict with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision those available to the Indemnifying Party of records Indemnitor or that the Indemnitor and information which are reasonably relevant Indemnitee have actual material conflicting interests with respect to such Third Party Claim. Notwithstanding the foregoing, the Indemnitor shall not be liable for the fees and making employees available disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of an Indemnitee, which shall not be unreasonably withheld, conditioned or delayed, the Indemnitor will not enter into any settlement of or consent to the entry of judgment in connection with any Third Party Claim that (i) would lead to liability or create any financial or other obligation on a mutually convenient basis to provide additional information and explanation the part of any material provided hereunder.
the Indemnitee, (ii) In does not contain, as an unconditional term thereof, the event the Indemnifying Party (x) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result release of the Indemnified Party's election to defend the Third Party Claim as provided Indemnitee from all liability in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense respect of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for or such Third Party Claim will is not dismissed against the Indemnitee with prejudice and without the imposition of any financial or other obligation on the Indemnitee or (iii) admits the liability or fault of the Indemnitee (the “Settlement Requirements”). If a settlement offer solely for money damages (and otherwise satisfying the Settlement Requirements) is made to resolve a Third Party Claim and the Indemnitor notifies the Indemnitee in writing of the Indemnitor’s willingness to accept the settlement offer and pay the amount called for by such offer without reservation of any rights or defenses against the Indemnitee and if the Indemnitee fails to consent to such settlement offer within ten calendar days after its receipt of such notice, Indemnitee may continue to contest such claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnitor has an obligation to pay hereunder shall be adversely affected by assuming limited to the lesser of (x) the amount of the settlement offer that the Indemnitee declined to accept plus the Losses of the Indemnitee relating to such Third Party Claim through the date of its rejection of the settlement offer and (y) the aggregate Losses of the Indemnitee with respect to such claim. The party controlling any defense shall keep the other party advised of the status of such Third Party ClaimClaim and the defense thereof and shall consider in good faith all reasonable recommendations made by the other party with respect thereto.
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Third Party Claims. (a) The If a Claim by a third party is made against an Indemnified Party agrees Person, and if such Indemnified Person intends to give seek indemnity with respect thereto under this Section 8, such Indemnified Person shall promptly notify the Indemnifying Party notice Indemnitor in writing of such Claims, setting forth such Claims in reasonable detail. The Indemnitor shall have twenty (20) Business Days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the assertion of any claim settlement or demand made bydefense thereof, or any other Action instituted by, any and the Indemnified Person not a Party to this Agreement (a “Third Party Claim”) shall cooperate with it in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2connection therewith; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that Person may participate in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any settlement or defense through counsel chosen by such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially Person and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any such defense paid at its own expense unless (A) expense; and provided further, that if in the Indemnifying Party opinion of counsel for such Indemnified Person there is a reasonable likelihood of a conflict of interest between the Indemnitor and the Indemnified Party are both named parties to Person, the proceedings Indemnitor shall be responsible for reasonable fees and a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party expenses of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available counsel to the Indemnifying Party in respect thereof or (B) the such Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party Person in connection with such participation will be borne by defense. The Indemnified Person shall not pay or settle any such Claim without the Indemnifying Partyconsent of the Indemnitor. Each Party will reasonably cooperate in If the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects Indemnitor does not to defend notify the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense of a Third Party Claim, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner Person within twenty (20) days Business Days after receiving written notice from receipt of the Indemnified Party Person’s notice of a Claim of indemnity hereunder that it elects to undertake the effect that the Indemnifying Party has so faileddefense thereof, the Indemnified Party will Person shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming undertake, at Indemnitor’s cost, risk and expense, the defense of the Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnitor shall not, except with the consent of the Indemnified Person, enter into any settlement that includes any obligations of the Indemnified Person other than the payment of money by the Indemnitor on its behalf and that does not include as an unconditional term thereof the giving by the Person or Persons asserting such Third Party ClaimClaim to all Indemnified Persons (i.e., Seller Parent Indemnified Persons or Buyer Indemnified Persons, as the case may be) of an unconditional release from all liability with respect to such Claim or consent to entry of any judgment.
Appears in 1 contract
Third Party Claims. (a) The Indemnified Party agrees to give the Indemnifying Party notice in writing of the assertion of any claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement (a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From obligations and after the delivery of a Indemnification Notice with respect to a Third Party Claim, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent liabilities of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice hereunder with respect to a Third Party Claim shall be subject to the following terms and conditions:
(a) The Indemnitee shall give the “Defense Notice Period”) Indemnitor written notice of a Third Party Claim promptly after receipt by the Indemnitee of notice thereof, and the Indemnitor may undertake and have control of the defense, compromise and settlement thereof with counsel of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify promptly the Indemnified Party Indemnitor of its election such claim shall not relieve the Indemnitor for any liability that it may have with respect to assume such claim except to the extent the Indemnitor demonstrates that the defense of such claim is prejudiced by such failure. The assumption of the defense, compromise and settlement of any such Third Party Claim by the Indemnitor shall be an acknowledgment of the obligation of the Indemnitor to indemnify the Indemnitee with respect to such claim hereunder, unless the Indemnitor gives written notice to the Indemnitee within thirty (30) days after receipt of the Indemnitee's notice that it disputes its liability to Indemnitee with respect to such Third Party Claim, notwithstanding its assumption of the defense thereof. All Losses incurred by If the Indemnified Party prior Indemnitee desires to participate in, but not control, any assumption by such defense, compromise and settlement, it may do so at its sole cost and expense; provided, however, in the Indemnifying Party event of a conflict of interest between Indemnitor and Indemnitee such that Indemnitor's attorney would have a conflict of interest in representing Indemnitor and Indemnitee, Indemnitor shall pay Indemnitee's reasonable attorneys' fees for separate legal counsel.
(b) If the Indemnitor fails or refuses to undertake the defense of a Third Party Claim will be reimbursed within thirty (30) days after written notice has been given to the Indemnitor by the Indemnifying Party to Indemnitee, the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend control the defense, compromise and settlement of the Third Party Claim with counsel of its own choosing, and the reasonable costs and expenses of the Indemnitee in connection therewith shall be included as part of the indemnification claim of the Indemnitee hereunder. If the Indemnitee shall elect to exercise such right, the Indemnitor shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(c) No settlement of a Third Party Claim as to which notice has been given to Indemnitor by Indemnitee pursuant to Section 9.4(a) shall be made without the prior written consent by or on behalf of the Indemnitor, which consent shall not be unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $10,000 or less where the Indemnitor has not responded with counsel selected by thirty (30) business days of notice of a proposed settlement. If the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed Indemnitor assumes the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions no compromise or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed settlement thereof may be effected by the Indemnifying Party. The Indemnified Party Indemnitor without the Indemnitee's consent (which will participate in any such defense at its own expense not be unreasonably withheld or delayed ) unless (Ai) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator there is no finding or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation admission of any material provided hereunder.
violation of law or any violation of the rights of any person, (ii) In the event sole relief provided is monetary damages and (iii) the Indemnifying Party (x) elects not compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense Indemnitee of a Third Party Claimrelease, fails to conduct the defense of such Third Party Claim in a form and substance reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party satisfactory to the effect that the Indemnifying Party has so failedIndemnitee, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense from all liability in respect of such Third Party Claim.
(d) In connection with the defense, compromise or settlement of any Third Party Claim, the parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by any Party hereto and, as may reasonably be related to any such claim or action, shall provide access to the counsel, accountants and other representatives of each Party during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such other Party and will furnish to such other party copies of all such documents as may reasonably be requested (certified, if requested); provided that all requests for information and exercise of rights of access hereunder shall be conducted through a representative designated by the Party upon whom such request is made and in a manner that will not impact adversely and unreasonably the normal conduct of such Party's business; provided, further, that the provisions of this Section 9.4(d) shall not require any Party to breach, violate or waive any privilege that would otherwise be available to such Party (including, without limitation, the attorney-client privilege).
Appears in 1 contract
Third Party Claims. The obligations and liabilities of the Parties hereunder with shall be subject to the following terms and conditions:
(a) The Indemnified Party agrees to Indemnitee shall give the Indemnifying Party Indemnitor written notice in writing of the assertion commencement of any claim or demand made byclaim, charge, arbitration, grievance, action, suit, proceeding, or any other Action instituted by, any Person not investigation against it by an unaffiliated third party (each a Party to this Agreement (a “"Third Party Claim”") in promptly after receipt by the Indemnitee of notice thereof, and the Indemnitor may undertake and have control of the defense, compromise and settlement thereof with counsel of its own choosing reasonably acceptable to the Indemnitee. The failure of the Indemnitee to notify promptly the Indemnitor of such claim shall not relieve the Indemnitor for any liability that it may have with respect to such claim except to the extent the Indemnitor demonstrates that the defense of which indemnity such claim is prejudiced by such failure. The assumption of the defense, compromise and settlement of any such Third Party Claim by the Indemnitor shall be an acknowledgment of the obligation of the Indemnitor to indemnify the Indemnitee with respect to such claim hereunder, unless the Indemnitor gives written notice to the Indemnitee within thirty (30) days after receipt of the Indemnitee's notice that it disputes its liability to Indemnitee with respect to such Third Party Claim, notwithstanding its assumption of the defense thereof. If the Indemnitee desires to participate in, but not control, any such defense, compromise and settlement, it may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2do so at its sole cost and expense; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery event of a Indemnification Notice with respect conflict of interest between Indemnitor and Indemnitee, unless the Indemnitor shall have retained independent legal counsel acceptable to a Third Party ClaimIndemnitee to represent the Indemnitee, the Indemnified Party will deliver to the Indemnifying Party, within ten (10) Business Days after the Indemnified PartyIndemnitor shall pay Indemnitee's receipt thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim shall be considered a Third Party Claim reasonable attorneys' fees for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)separate legal counsel.
(b) (i) With respect If the Indemnitor fails or refuses to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of undertake the defense of a Third Party Claim will be reimbursed within thirty (30) days after written notice has been given to the Indemnitor by the Indemnifying Party to Indemnitee, the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will Indemnitee shall have the right to so defend control the defense, compromise and settlement of the Third Party Claim with counsel of its own choosing, and the costs and expenses of the Indemnitee in connection therewith shall be included as part of the indemnification claim of the Indemnitee hereunder. If the Indemnitee shall elect to exercise such right, the Indemnitor shall have the right to participate in, but not control, the defense, compromise and settlement of such Third Party Claim at its sole cost and expense.
(c) No settlement of a Third Party Claim as to which notice has been given to Indemnitor by Indemnitee pursuant to SECTION 14.4(a) shall be made without the prior written consent by or on behalf of the Indemnitor, which consent shall not be unreasonably withheld or delayed. Consent shall be presumed in the case of settlements of $10,000 or less where the Indemnitor has not responded with counsel selected by thirty (30) business days of notice of a proposed settlement. If the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed Indemnitor assumes the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions no compromise or correspondence with any Governmental Entity, and to employ counsel separate from the counsel employed settlement thereof may be effected by the Indemnifying Party. The Indemnified Party Indemnitor without the Indemnitee's consent (which will participate in any such defense at its own expense not be unreasonably withheld or delayed) unless (Ai) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and a Governmental Entity, arbitrator there is no finding or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B), all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation admission of any material provided hereunder.
violation of law or any violation of the rights of any person, (ii) In the event sole relief provided is monetary damages and (iii) the Indemnifying Party (x) elects not compromise or settlement includes, as an unconditional term thereof, the giving by the claimant or the plaintiff to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of the Indemnified Party's election to defend the Third Party Claim as provided in Section 7.3(b)(i); or (z) after assuming the defense Indemnitee of a Third Party Claimrelease, fails to conduct the defense of such Third Party Claim in a form and substance reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party satisfactory to the effect that the Indemnifying Party has so failedIndemnitee, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense from all liability in respect of such Third Party Claim.
(d) In connection with the defense, compromise or settlement of any Third Party Claim, the Parties to this Agreement shall execute such powers of attorney as may reasonably be necessary or appropriate to permit participation of counsel selected by any Party hereto and, as may reasonably be related to any such claim or action, shall provide access to the counsel, accountants and other representatives of each Party during normal business hours to all properties, personnel, books, tax records, contracts, commitments and all other business records of such other Party and will furnish to such other Party copies of all such documents as may reasonably be requested (certified, if requested); provided that all requests for information and exercise of rights of access hereunder shall be conducted through a representative designated by the Party upon whom such request is made and in a manner that will not impact adversely and unreasonably the normal conduct of such Party's business; provided, further, that the provisions of this SECTION 14.4(d) shall not require any Party to breach, violate or waive any privilege that would otherwise be available to such Party (including, without limitation, the attorney-client privilege).
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Third Party Claims. (ai) The Indemnified In order for a party (the “Indemnitee”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of, or involving a claim or demand made by any Person against the Indemnitee (a “Third-Party agrees to give Claim”), such Indemnitee must notify the Indemnifying Party notice party from whom indemnification hereunder is sought (the “Indemnitor”) in writing of the assertion of any Third-Party Claim no later than thirty (30) days after such claim or demand made by, or any other Action instituted by, any Person not a Party to this Agreement is first asserted (a “Third Third-Party ClaimClaim Notice”). A Third-Party Claim Notice shall state in reasonable detail the amount or estimated amount of such claim, and shall identify the specific basis (or bases) for such claim, including the representations, warranties or covenants in respect of which indemnity may be sought under Section 7.1 in accordance with the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification this Agreement alleged to have been breached. Failure to give a Third-Party Claim Notice will shall not affect the indemnification provided hereunder, hereunder except to the extent the Indemnifying Party will Indemnitor shall have been materially actually prejudiced as a result of such delayfailure. From and after the delivery of a Indemnification Notice with respect to a Third Party ClaimThereafter, the Indemnified Party will Indemnitee shall deliver to the Indemnifying PartyIndemnitor, within ten (10) Business Days after the Indemnified Party's receipt thereofwithout undue delay, true, correct and complete copies of all material notices and documents (including court papers) papers received by the Indemnified Party Indemnitee) relating to the Third Party Claim. Any CIE Claim shall be considered a Third Third-Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if so long as any such exposure is created disclosure could not reasonably be expected to have an adverse effect on the attorney-client or any other privilege that results may be available to the Indemnitee in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii)connection therewith.
(bii) (i) With respect to If a Third Third-Party ClaimClaim is made against an Indemnitee, the Indemnifying Party will Indemnitor shall be entitled to participate, at its expense, in the defense thereof. Notwithstanding the foregoing, if (A) the Indemnification Threshold has been exceeded, (B) no claim for injunctive relief is being made against Indemnitee, and (C) it is reasonably likely that the Indemnitee will not suffer a Loss in excess of Indemnitor’s indemnification obligation hereunder, the Indemnitor may elect to assume and control the defense thereof with counsel selected by the Indemnitor that is reasonably acceptable to Indemnitee. If the Indemnitor assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and, if it so elects, to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party will have the right, but not the obligation, to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, and to employ counsel counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnified Party will participate in any Indemnitor, it being understood that the Indemnitor shall control such defense at its own expense unless (A) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and defense; provided, that, Indemnitee’s expenses of counsel shall be an indemnified Loss for purposes of this Article 9 if such counsel reasonably concludes that a Governmental Entity, arbitrator or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual conflict or potential differing interests conflict exists between them or Indemnitee and Indemnitor that would make separate representation advisable. If the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or (B) the Indemnified Party Indemnitor so assumes the defense of a Third any Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, and in the case of (A) or (B)Claim, all such expenses incurred by of the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will indemnified parties shall reasonably cooperate with the Indemnitor in the defense or prosecution of a Third Party Claimthereof. Such cooperation will include shall include, at the expense of the Indemnitor, the retention and, and (upon the Indemnifying Party's Indemnitor’s request, ) the provision to the Indemnifying Party Indemnitor of records and information which are reasonably relevant to such Third Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In . If the event Indemnitor has assumed the Indemnifying defense of a Third-Party Claim, (x) elects the Indemnitee shall not to defend admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnified Party against a Third Party Claim, whether by Indemnitor’s prior written consent (which consent shall not giving the Indemnified Party timely notice of its desire to so defend be unreasonably withheld or otherwisedelayed); (y) is not entitled the Indemnitee shall agree to defend the Third any settlement, compromise or discharge of a Third-Party Claim as a result of which the Indemnified Party's election to defend Indemnitor may recommend and which by its terms releases the Third Indemnitee from any liability in connection with such Third-Party Claim as provided in Section 7.3(b)(i)without cost or expense and without any admission of violation, injunction or agreement to take or restrain from taking any action; or and (z) after assuming the defense Indemnitor shall not, without the written consent of a Third Party Claimthe Indemnitee, fails to conduct the defense of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party enter into any settlement, compromise or discharge or consent to the effect that entry of any judgment which imposes any expense, obligation or restriction upon the Indemnifying Party has so failedIndemnitee or requires the Indemnitee to admit or acknowledge to any fact or event, the Indemnified Party will have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not be adversely affected by assuming the defense including any violation of such Third Party Claim.Law. Seller V.V. Purchaser T.S. R.T.
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Sources: Securities Purchase Agreement (Rudana Investment Group AG)
Third Party Claims. Any Person making a claim for indemnification under this Section 6.2 (aan “Indemnitee”) The Indemnified Party agrees to give shall notify the Indemnifying Party notice indemnifying party (an “Indemnitor”) of the claim in writing of the assertion promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim or demand made by, or any other Action instituted by, any Person not against it (if by a Party to this Agreement third party) (each a “Third Party Claim”) in respect of which indemnity may be sought under Section 7.1 in accordance with ), describing the notice procedures set forth in Section 7.2; provided, however, that any delay in delivering any Indemnification Notice will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been materially prejudiced as a result of such delay. From and after the delivery of a Indemnification Notice with respect to a Third Party Claimclaim, the Indemnified Party will deliver to amount thereof (if known and quantifiable) and the Indemnifying Party, within ten (10) Business Days after the Indemnified Party's receipt basis thereof, true, correct and complete copies of all material notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. Any CIE Claim Indemnitor shall be considered a Third Party Claim for purposes of the procedures set forth in this Section 7.3, it being the intent of the parties that Seller will assume the defense and settlement of any CIE Claim; provided that in such event, Seller will use reasonable best efforts not to create any bad faith exposure for Buyer, and, for the avoidance of doubt, if any such exposure is created that results in Losses to any of the Buyer Indemnified Parties, Seller will indemnify Buyer Indemnified Parties for such Losses pursuant to Section 7.1(a)(ii).
(b) (i) With respect to a Third Party Claim, the Indemnifying Party will be entitled to participate in the defense thereof andof such action, if it so electslawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof, unless such Third Party Claim is reasonably likely to materially thereof by appointing a nationally recognized and adversely affect the Indemnified Party and/or the Indemnified Party's Affiliates other than as a result of monetary damages. Unless the Indemnified Party will have notified the Indemnifying Party of the existence of the condition set forth in the preceding sentence, the Indemnifying Party will have thirty (30) days (or such lesser number of days set forth in the Indemnification Notice as may be required by any Governmental Entity, any court or arbitration proceedings, or any regulatory inquiry or investigation) from receipt of the Indemnification Notice with respect to a Third Party Claim (the “Defense Notice Period”) to notify the Indemnified Party of its election to assume the defense of such Third Party Claim. All Losses incurred by the Indemnified Party prior to any assumption by the Indemnifying Party of the defense of a Third Party Claim will be reimbursed by the Indemnifying Party to the extent the Indemnifying Party is required to indemnify and hold harmless the Indemnified Party from, against and in respect of Losses incurred or suffered by the Indemnified Party to the extent arising from such Third Party Claim. If the Indemnifying Party notifies the Indemnified Party within the Defense Notice Period that it elects to defend such Third Party Claim, it will have the right to so defend at its expense, with reputable counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party. Once Indemnitee to be the Indemnifying Party has duly assumed lead counsel in connection with such defense; provided that, prior to the Indemnitor assuming control of such defense it shall first verify to the Indemnitee in writing that such Indemnitor shall be fully responsible pursuant and subject to the terms of a Third Party Claimthis ARTICLE VI for all liabilities and obligations relating to such claim for indemnification and that (subject to the dollar limitations otherwise set forth herein) such Indemnitor shall provide full indemnification (to the extent required hereunder) to the Indemnitee with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder; and provided further, that:
(i) the Indemnified Party will have the right, but not the obligation, Indemnitee shall be entitled to participate in the defense thereof, including the opportunity to participate in any discussions or correspondence with any Governmental Entity, of such claim and to employ counsel of its choice for such purpose; provided that the fees and expenses of such separate from the counsel employed shall be borne by the Indemnifying Party. The Indemnified Party will participate in Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense at its own expense which, notwithstanding the foregoing, shall be borne by the Indemnitor);
(ii) the Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and, assuming such claim for indemnification is valid and the indemnification rights set forth in this Section 6.2 apply, shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if (A) the Indemnifying Party and the Indemnified Party are both named parties claim for indemnification relates to the proceedings and a Governmental Entityor arises in connection with any criminal or quasi-criminal proceeding, arbitrator action, indictment, allegation or arbitration panel, as applicable, with jurisdiction over the proceedings at issue will have determined that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or the availability to the Indemnified Party of one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the Indemnifying Party in respect thereof or investigation; (B) the Indemnified Party assumes Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would have a material adverse effect on the Indemnitee’s reputation or future business prospects; (C) the claim seeks an injunction or equitable relief against the Indemnitee; (D) the Indemnitee has been advised by legal counsel that there are one or more legal or equitable defenses available to the Indemnitee that are different from or in addition to those available to the Indemnitor and the Indemnitee is advised by legal counsel that legal counsel for the Indemnitor could not adequately represent the Indemnitee’s interests because they conflict with those of the Indemnitor; (E) upon petition by the Indemnitee a court of competent jurisdiction rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; or (F) the claim asserts Losses that expressly exceed the maximum amount that such Indemnitee could then be entitled to recover under the applicable provisions of Section 6.2;
(iii) if the Indemnitor shall control the defense of a Third Party Claim after any such claim, the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumedIndemnitor shall obtain the prior written consent of the Indemnitee, and in the case of (A) or (B)which consent shall not be unreasonably withheld, all such expenses incurred by the Indemnified Party in connection with such participation will be borne by the Indemnifying Party. Each Party will reasonably cooperate in the defense or prosecution before entering into any settlement of a Third Party Claim. Such cooperation will include the retention and, upon the Indemnifying Party's request, the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(ii) In the event the Indemnifying Party (x) elects not claim or ceasing to defend the Indemnified Party against a Third Party Claimsuch claim if, whether by not giving the Indemnified Party timely notice of its desire pursuant to so defend or otherwise; (y) is not entitled to defend the Third Party Claim as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnified Party's election Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to defend such claim, without prejudice; and
(iv) if the Third Party Claim as provided in Section 7.3(b)(i); Indemnitor is not entitled to, or (z) after assuming the defense of a Third Party Claimdoes not, fails to conduct the defense assume control of such Third Party Claim in a reasonably diligent manner within twenty (20) days after receiving written notice from the Indemnified Party defense pursuant to the effect preceding provisions of this Section 6.2(e), the Indemnitee shall control such defense without waiving any right that the Indemnifying Party has so failedIndemnitee may have against the Indemnitor for indemnification pursuant to this Section 6.2(e). For the avoidance of doubt, the Indemnified Party will have the right but this Section 6.2(e) shall not the obligation apply to assume its own defense; it being understood that the Indemnified Party's right to indemnification for such Third Party Claim will not any Tax Matter, which shall be adversely affected governed exclusively by assuming the defense of such Third Party ClaimSection 7.2 herein.
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