Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows: (a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder. (b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom. (c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed. (d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges. (e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfIf any Buyer Indemnitee or Stockholder Indemnitee (each referred to as an “Indemnitee”) receives notice of the assertion by any third party of any claim or of the commencement by any such third party of any action (any such claim or action being referred to herein as an “Indemnifiable Claim”) with respect to which Stockholder or Buyer (each referred to as “Indemnitor”) are or may be obligated to provide indemnification, within the Indemnitee shall promptly notify the Indemnitor in writing (the “Claim Notice”) of the Indemnifiable Claim; provided, that the failure to provide such notice shall not relieve or otherwise affect the obligation of the Indemnitor to provide indemnification hereunder, except to the extent that any Losses directly resulted or were caused by such failure.
(b) The Indemnitors shall have thirty (30) days after receipt of the Claim Notice (unless the claim or action requires a Notice response before the expiration of such thirty-day period, in which case the Indemnitors shall have until the date that is ten (10) 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) the Indemnitor shall permit the Indemnitee to participate in such settlement or defense through counsel chosen by the Indemnitee, provided, that the fees and expenses of such Indemnitee’s counsel shall not be borne by the Indemnitors; (ii) the Indemnitor shall not settle any Indemnifiable Claim is delivered without the Indemnitee’s consent if the 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 impact the ongoing operations of the Network Business; and (iii) if, in the opinion of counsel to the Seller RepresentativeIndemnitor, either (x) the Seller Representative produces a notice of election and Indemnitee has separate defenses from the Indemnitor, (y) such notice there is a conflict of election includes a written acknowledgment from interest between the Seller Representative on behalf Indemnitor and Indemnitee or (z) there is any danger of criminal liability of the Seller Guarantors and Indemnitee, then the Sellers (Indemnitee shall be permitted to retain special counsel of its own choosing at the “Indemnifying Persons”) that reasonable expense of the Indemnifying Persons would be required to indemnify Indemnitor. So long as the Acquiror Indemnified Persons for all Damages Indemnitor is vigorously contesting any such Indemnifiable Claim in connection with such Third Party Claim Noticegood faith, the Indemnifying Persons Indemnitee shall have not pay or settle such claim without the rightIndemnitor’s consent, but which consent shall not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to If the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or Indemnitor does not acknowledge in writing notify the Indemnitee within thirty (30) days after receipt of the Third Party Claim Notice its obligation (or before the date that is ten (10) 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 indemnify undertake the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimdefense of the Indemnifiable Claim described therein, then the Acquiror Indemnified Persons Indemnitee shall have the right to retain separate counsel contest, settle or compromise the Indemnifiable Claim in the exercise of their choosingits reasonable discretion; provided, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that Indemnitee shall notify the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense Indemnitor of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, any compromise or pay settlement of any such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedIndemnifiable Claim.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 3 contracts
Sources: Equity Purchase Agreement (Macrovision Solutions CORP), Equity Purchase Agreement (Macrovision Solutions CORP), Equity Purchase Agreement (Lions Gate Entertainment Corp /Cn/)
Third Party Claims. Each Notice 5.1 In respect of Claim given any claim against QIWI after Completion Date 1 by Acquiror, which involves a third party (a “Third Party Claim”)) that would or would be reasonably expected to give rise to a claim against the Investor, QIWI shall be resolved as follows:(and shall procure, where relevant, that CIHRUS shall):
(a) Ifas soon as reasonably practicable, within thirty (30) days after a Notice give written notice and reasonable details of the Third Party Claim is delivered to the Seller RepresentativeInvestor;
(b) not make any admission of liability, agreement, settlement or compromise with any person, body or authority in relation to the Third Party Claim, except as required by Applicable Law, without consulting with the Investor regarding any material actions to be taken by QIWI in order to avoid, dispute, resist, defend, appeal, compromise, settle, mitigate or remedy the Third Party Claim;
(xc) give the Seller Representative produces a notice Investor or its duly authorised representatives such assistance as the Investor may reasonably require and shall ensure that QIWI gives the Investor and its professional advisers reasonable access during working hours to relevant employees and premises of election QIWI and access to (yand permission to take copies of) such notice of election includes a written acknowledgment from all relevant documents in order to allow the Seller Representative on behalf Investor to investigate the Third Party Claim and take the actions referred to in this paragraph (c);
(d) keep the Investor reasonably informed as to the progress of the Seller Guarantors Third Party Claim including the receipt of any material communications;
(e) consult with the Investor as to any ways in which the Third Party Claim might be avoided, disputed, resisted, mitigated, settled, compromised, defended or appealed;
(f) at QIWI’s sole discretion, allow the Investor to participate in any action involving a Third Party Claim and assume the Sellers defence thereof, with counsel satisfactory to QIWI (who shall not, except with the “Indemnifying Persons”) that consent of QIWI, also be counsel to QIWI), following which the Indemnifying Persons would Investor shall not be required liable to indemnify the Acquiror Indemnified Persons QIWI under this paragraph 5 for all Damages any legal or other expenses subsequently incurred by QIWI in connection with the defence thereof other than properly incurred costs of investigation. The Investor may agree to any settlement or compromise of any such Third Party Claim Noticein its sole discretion, the Indemnifying Persons shall have the right, but not the obligation to so long as such settlement or compromise (i) does not obligate QIWI to take control of the defense and investigation of such Third Party Claimor refrain from taking any action, (ii) employ and engage attorneys provides for a complete release of their own choice (subject to the approval of Acquiror, QIWI by such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expensethird party, and (iii) does not include any statement as to or any admission of liabilitt by or on behalf of QIWI. In all other events, the Investor will seek the consent of QIWI in connection with the Investor’s agreement to any settlement or compromise or settle of any such Third Party Claim; and
(g) take such action, which compromise or settlement shall be made only with at the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release request of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which Investor, as the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoingInvestor may reasonably require to avoid, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of dispute, resist, mitigate, settle, compromise, defend or appeal the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 3 contracts
Sources: Deed of Subscription (Otkritie Investments Cyprus LTD), Deed of Subscription (Qiwi), Deed of Subscription (Otkritie Investments Cyprus LTD)
Third Party Claims. Each Notice The following procedures shall be applicable to any Claim by Vendor or a Vendor’s Representative (the "Indemnitee") for indemnification pursuant to this Agreement from Purchaser in respect of Claim given by Acquiror, which involves any Losses in relation to a third party Third Party (a “"Third Party Claim”), shall be resolved as follows:"):
(a) Ifupon the Third Party Claim being made against or commenced against the Indemnitee, the Indemnitee shall within thirty (30) days after a Notice 30 Business Days of Claim is delivered notice thereof provide written notice thereof to the Seller RepresentativePurchaser. The notice shall describe the Third Party Claim in reasonable detail and indicate the estimated amount, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf if practicable, of the Seller Guarantors and indemnifiable Losses that have been or may be sustained by the Sellers (Indemnitee in respect thereof. If the “Indemnifying Persons”) Indemnitee does not provide notice to the Purchaser within such 30 Business Day period, then such failure shall only lessen or limit the Indemnitee's rights to indemnity hereunder to the extent that the Indemnifying Persons would be required defence of the Third Party Claim was prejudiced by such lack of timely notice;
(b) if the Purchaser acknowledges to the Indemnitee in writing that the Purchaser is responsible to indemnify the Acquiror Indemnified Persons for all Damages Indemnitee in connection with such respect of the Third Party Claim Noticepursuant hereto, the Indemnifying Persons Purchaser shall have the right, but not right to take either or both of the obligation to following actions:
(i) take control assume carriage of the defense defence of the Third Party Claim using legal counsel of its choice and investigation of such at its sole cost; and/or
(ii) settle the Third Party Claim, provided the Purchaser pays the full monetary amount of the settlement and the settlement does not impose any restrictions or obligations on the Indemnitee, and provided a full and final unconditional release in favour of Vendor and its Representatives is obtained in form and substance satisfactory to Vendor;
(iic) employ and engage attorneys of their own choice (subject if the Purchaser acknowledges to the approval of Acquiror, such approval not Indemnitee in writing that the Purchaser is responsible to be unreasonably withheld, conditioned or delayed) to handle and defend indemnify the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified Indemnitee in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense respect of a Third Party Claim if (1) pursuant hereto, the Indemnifying Persons fail Indemnitee shall not enter into any settlement, consent order or other compromise with respect to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law), and unless the Indemnitee waives its rights to cause all communications among employees, counsel and others representing any party to a indemnification in respect of the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.Claim;
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfIf a Third Party asserts that a Buyer Indemnified Party or any Seller Indemnified Party (collectively, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Indemnified Persons”) is liable to such Third Party for a monetary or other obligation which may constitute or result in Damages for which such Indemnified Person may be entitled to indemnification pursuant to this Article 6, then such Indemnified Person may make a claim for indemnification pursuant to this Article 6 and shall be reimbursed in accordance with the applicable provisions of this Agreement for any such Damages for which it is entitled to indemnification pursuant to this Article 6 (subject to the right of the indemnifying Party to dispute the Indemnified Person’s entitlement to indemnification under the applicable terms of this Agreement).
(b) The Indemnified Person shall give prompt written notification to Seller or Buyer, as the case may be, of the commencement of any Proceeding relating to a Third Party claim for which indemnification pursuant to this Article 6 may be sought; provided, however, that no delay on the Indemnifying Persons would part of the Indemnified Person in notifying Seller or Buyer, as the case may be, shall relieve Seller or Buyer, as the case may be, of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 30 days after delivery of such notification, Seller or Buyer, as the case may be, may, upon written notice thereof to the Indemnified Person, assume control of the defense of such Proceeding provided Seller or Buyer, as the case may be, acknowledges in writing to the Indemnified Person that any damages, fines, costs or other liabilities that may be required to indemnify assessed against the Acquiror Indemnified Persons for all Damages Person in connection with such Third Party Claim NoticeProceeding constitute Damages for which the Indemnified Person shall be entitled to indemnification pursuant to this Article 6. During such time as Seller or Buyer, as the case may be, is controlling the defense, the Indemnifying Persons Indemnified Person shall have cooperate, and cause its Affiliates, agents, licensees to cooperate upon request of Seller or Buyer, as the rightcase may be, but not in the obligation to (i) take defense, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the Seller or Buyer, as the case may be. If Seller or Buyer does not, as the case may be, so assume control of such defense, the Indemnified Person shall control such defense. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such Proceeding and the defense and investigation thereof. The Indemnified Person shall not agree to any settlement of such Third Party ClaimProceeding without the prior written consent of Seller or Buyer, (ii) employ and engage attorneys of their own choice (subject to as the approval of Acquirorcase may be, such approval which shall not to be unreasonably withheld, conditioned or delayed) to handle and defend . Seller or Buyer, as the samecase may be, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right agree to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense any settlement of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Proceeding without the prior written consent of the Indemnifying PersonsIndemnified Person, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Orphazyme a/S), Asset Purchase Agreement (Orphazyme a/S), Asset Purchase Agreement (Cytrx Corp)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to In the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) event that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such any Third Party Claim Noticeis asserted or commenced against a Indemnitee with respect to which such Indemnitee is entitled to indemnification under this Section 8.3, the Indemnifying Persons Indemnitee shall: (A) promptly notify Seller of its existence, setting forth in writing with reasonable specificity the facts and circumstances of which such Indemnitee received notice; and (B) specify the basis hereunder upon which the Indemnitee’s Claim for indemnification is asserted.
(b) Except as herein provided, the Indemnitee shall not, and Seller shall, have the rightright to contest, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdefend, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise litigate or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively is so tendered and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of thereafter Seller accepts such tender and acknowledges in writing without qualification its indemnification obligation hereunder, subject only to the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimlimitations on indemnification set forth in this Agreement, then the Acquiror Indemnified Persons including Section 8.2. The Indemnitee shall have the right to retain separate be represented by counsel of their choosingat its own expense in any such contest, defense, litigation or settlement conducted by the Indemnitor. Seller shall lose its right to contest, defend, litigate and settle the Third Party Claim if it shall fail to diligently contest the Third Party Claim. So long as Seller has not lost its right to contest, defend, litigate and settle as herein provided, Seller shall have the right to contest, defend such and litigate the Third Party Claim and shall have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a enter into any settlement of any Third Party Claim shall not be adversely affected by assuming the defense Claim; provided, that such settlement includes an unconditional written release from all liability in respect of such Third Party Claim. Notwithstanding anything herein to the contrary; provided, whether or further, that Seller may not the Indemnifying Persons shall have assumed the defense enter into any settlement of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such any Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
) of the Indemnitee if pursuant to or as a result of such settlement: (dA) The Acquiror Indemnified Persons and injunctive or other equitable relief would be imposed against the Indemnifying Persons Indemnitee; (B) such settlement would or could reasonably be expected to lead to any liability or create any financial or other obligation on the part of the Indemnitee; or (C) such settlement would adversely affect the conduct of the Business. Seller shall use commercially reasonable efforts not be entitled to avoid production assume control of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if: (X) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment or allegation; (Y) the Third Party Claim seeks injunctive or other equitable relief, or Buyer reasonably believes that the Third Party Claim, if adversely determined, would impair in any respect the financial condition, business, operations, reputation or prospects of Buyer, the Indemnitee, or the Company; or (Z) the interests of the Indemnitee in the Third Party Claim is or can reasonably be expected to be made so as adverse to preserve the interests of Seller. If the Indemnitee has assumed control of the defense of a Third Party Claim pursuant to the foregoing sentence, it shall not agree to any settlement without the consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed), provided that Seller has acknowledged in writing without qualification its indemnification obligation hereunder, subject only to the limitations on indemnification set forth in this Agreement, including Section 8.2. Subject to any applicable attorney-client limitations set forth in Section 8.2, all expenses (including attorneys’ fees) incurred by the Indemnitor in connection with the foregoing shall be paid by Seller. If an Indemnitee is entitled to indemnification against a Third Party Claim, and Seller fails to accept a tender of the defense of a Third Party Claim pursuant to this Section 8.3(b), or work-product privilegesif, in accordance with the foregoing, Seller shall lose its right to contest, defend, litigate and settle such a Third Party Claim, the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in reasonable good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable. If, pursuant to the preceding sentence, the Indemnitee so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder, the Indemnitee shall be reimbursed by Seller for the reasonable attorneys’ fees and other expenses of contesting, defending, litigating and settling the Third Party Claim which are incurred from time to time, promptly following the presentation to Seller of itemized bills for such attorneys’ fees and other expenses, subject, however, to any applicable limitations set forth in Section 8.2. Seller and any Indemnitee shall reasonably cooperate with one another in the contest, defense or litigation of any Third Party Claim.
(ec) Notwithstanding anything to the contrary contained in this Agreement, the procedures for all Tax Contests shall be governed exclusively by Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings7.7 and not this Section 8.3.
Appears in 3 contracts
Sources: Share Purchase Agreement (You on Demand Holdings, Inc.), Share Purchase Agreement (Beijing Sun Seven Stars Culture Development LTD), Share Purchase Agreement (You on Demand Holdings, Inc.)
Third Party Claims. Each Notice The following procedures shall be applicable to any Claim by Vendor or a Vendor’s Representative (the "Indemnitee") for indemnification pursuant to this Agreement from Purchaser in respect of Claim given by Acquiror, which involves any Losses in relation to a third party Third Party (a “"Third Party Claim”), shall be resolved as follows:"):
(a) Ifupon the Third Party Claim being made against or commenced against the Indemnitee, the Indemnitee shall within thirty (30) days after a Notice 30 Business Days of Claim is delivered notice thereof provide written notice thereof to the Seller RepresentativePurchaser. The notice shall describe the Third Party Claim in reasonable detail and indicate the estimated amount, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf if practicable, of the Seller Guarantors and indemnifiable Losses that have been or may be sustained by the Sellers (Indemnitee in respect thereof. If the “Indemnifying Persons”) Indemnitee does not provide notice to the Purchaser within such 30 Business Day period, then such failure shall only lessen or limit the Indemnitee's rights to indemnity hereunder to the extent that the Indemnifying Persons would be required defence of the Third Party Claim was prejudiced by such lack of timely notice;
(b) if the Purchaser acknowledges to the Indemnitee in writing that the Purchaser is responsible to indemnify the Acquiror Indemnified Persons for all Damages Indemnitee in connection with such respect of the Third Party Claim Noticepursuant hereto, the Indemnifying Persons Purchaser shall have the right, but not right to take either or both of the obligation to following actions:
(i) take control assume carriage of the defense defence of the Third Party Claim using legal counsel of its choice and investigation of such at its sole cost; and/or
(ii) settle the Third Party Claim, provided the Purchaser pays the full monetary amount of the settlement and the settlement does not impose any restrictions or obligations on the Indemnitee, and provided a full and final unconditional release in favour of Vendor and its Representatives is obtained in form and substance satisfactory to Vendor;
(iic) employ and engage attorneys of their own choice (subject if the Purchaser acknowledges to the approval of Acquiror, such approval not Indemnitee in writing that the Purchaser is responsible to be unreasonably withheld, conditioned or delayed) to handle and defend indemnify the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified Indemnitee in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense respect of a Third Party Claim if (1) pursuant hereto, the Indemnifying Persons fail Indemnitee shall not enter into any settlement, consent order or other compromise with respect to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed.), unless the Indemnitee waives its rights to indemnification in respect of the Third Party Claim;
(d) each Party shall co-operate with the other Party in the defence of the Third Party Claim, including making available such of its personnel to the other Party and its Representatives whose assistance, testimony or presence is of material assistance in evaluating and defending the Third Party Claim;
(e) upon payment of the Third Party Claim, the Purchaser shall be subrogated to all Claims the Indemnitee may have relating thereto. The Acquiror Indemnified Persons Indemnitee shall give such further assurances and do such things to co-operate with the Purchaser to permit the Purchaser to pursue such subrogated Claims as reasonably requested from it; and
(f) if the Purchaser has paid an amount pursuant to the indemnification obligations herein and the Indemnifying Persons Indemnitee shall use commercially reasonable efforts to avoid production subsequently be reimbursed from any source in respect of confidential information the Third Party Claim from any Third Party which results in the Indemnitee receiving, in the aggregate, more than the amount of the Third Party Claim, the Indemnitee shall promptly pay the amount of the reimbursement (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a including interest actually received) in excess of the Third Party Claim to the Purchaser, net of taxes required to be made so paid by the Indemnitee as to preserve a result of any applicable attorney-client or work-product privilegessuch receipt.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement
Third Party Claims. Each Notice The obligations and liabilities of Claim given by Acquiror, which involves the ------------------ parties hereunder with respect to a third party (a “Third Party Claim”), Claim shall be resolved as followssubject to the following terms and conditions:
(a) The Indemnitee shall give the Indemnitor written notice of a 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 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 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 Indemnitors 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 sole cost and expense. If, however, the Indemnitor fails or refuses to undertake the defense of such Third Party Claim within thirty (30) days after a Notice written notice of Claim is delivered such claim has been given to the Seller Representative, Indemnitor by the Indemnitee (x) the Seller Representative produces a notice of election and (y) or such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required shorter period if necessary to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation avoid prejudice to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim), (3) the Indemnitee shall have the right to undertake the defense, compromise and settlement of such Third Party Claim seeks a finding or admission claim with counsel of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunderown choosing.
(b) In No settlement of a Third Party Claim involving the event that asserted liability of the Indemnifying Persons defend Indemnitors under this Article shall be made without the Acquiror Indemnified Persons against prior written consent by or on behalf of the Indemnitor which consent shall not be unreasonably withheld or delayed. If the Indemnitor assumes the defense of such a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not controli) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, no compromise or pay such Third Party Claim for which they seeks indemnification hereunder settlement thereof may be effected by the Indemnitor without the prior written consent of the Indemnifying PersonsIndemnitee's consent, which consent shall not be unreasonably withheldwithheld or delayed (it being understood that such consent must be given if (1) 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 by or against the Indemnitee, conditioned (2) the sole relief provided is monetary damages that are paid in full by the Indemnitors, and (3) the compromise or delayedsettlement 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.
(dc) The Acquiror Indemnified Persons and In connection with the Indemnifying Persons defense, compromise or settlement of any Third Party Claim, the Parties to this Agreement shall use commercially reasonable efforts to avoid production permit participation of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing selected by any party hereto and, as may reasonably be related to a Third Party Claim to be made so as to preserve any applicable attorney-client such claim or work-product privileges.
(e) Notwithstanding anything action, shall provide access, without any cost or any unnecessary burden on any Indemnitee, to the contrary in this Agreementcounsel, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsaccountants and other representatives of each party and during normal business hours, to all relevant properties, personnel, books, tax records, contracts, commitments and all other relevant 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: Strategic Alliance Agreement (Premiere Technologies Inc), Strategic Alliance Agreement (Premiere Technologies Inc)
Third Party Claims. Each Notice (a) In the event Parent becomes aware of Claim given a third-party claim which Parent believes may result in a claim against the Holdback Shares by Acquiror, which involves or on behalf of a third party Parent Indemnified Person (a “Third Party Claim”), Parent shall be resolved as follows:
(a) If, within thirty (30) days after a Notice notify the Stockholders’ Representative in writing of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice(such notice, the Indemnifying Persons a “Notice of Claim”). The Stockholders’ Representative shall have ten (10) days from the right, but not date on which it received the obligation to Notice of Claim (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed“Defense Review Period”) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, notify Parent that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right it desires to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense prosecution of such Third Party Claim and any appeal arising therefrom, including, if appropriate litigation resulting therefrom with counsel reasonably acceptable to Parent and related to such at the sole cost and expense of the Company Stockholders (a “Third Party ClaimDefense”). If the Stockholders’ Representative assumes the Third Party Defense in accordance herewith, in making any counterclaim against (i) Parent may retain separate co-counsel, but the third party claimant, or any cross complaint against any Person, in each case, fees and expenses of such counsel shall not be at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in Company Stockholders; (but not controlii) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything Stockholders’ Representative will not consent to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation entry of any judgment or does not acknowledge in writing within thirty (30) days after receipt of enter into any settlement with respect to the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, Parent which consent shall not be unreasonably withheld, conditioned or delayed; (iii) the Stockholders’ Representative shall conduct the Third Party Defense actively and diligently and provide copies of all correspondence and related documentation in connection with the Third Party Defense (for the avoidance of doubt, in each case limited to correspondence and documentation between the Stockholders’ Representative and such third party claimant) to Parent; and (iv) Parent will provide reasonable cooperation in the Third Party Defense. Notwithstanding the foregoing, if (x) the Third Party Claim involves a criminal proceeding against Parent or (y) the party that made or filed the third-party claim seeks an injunction against Parent or the Surviving Corporation that (1) in the reasonable opinion of counsel for Parent, is reasonably likely to be obtained and (2) if obtained, is reasonably likely to have a material adverse effect on the business or results of operation of Parent or the Surviving Corporation, then counsel for the Parent shall be entitled, if the Parent so elects, to conduct the defense to the extent reasonably determined by such counsel to protect the interests of the Parent, at the expense of the Company Stockholders.
(db) The Acquiror Indemnified Persons In the event the Stockholders’ Representative elects not to conduct or does not have a right to conduct the defense of and settlement or resolution any such claim, then Parent shall have the right to conduct the defense of and to settle or resolve any such claim (and the Indemnifying Persons shall use commercially costs and expenses incurred by Parent in connection with such defense, settlement or resolution (including reasonable efforts to avoid production attorneys’ fees (other than those of confidential information (consistent with Lawin-house legal counsel), other professionals’ and to cause all communications among employees, counsel experts’ fees and others representing any party court or arbitration costs) shall be included in the Parent Indemnifiable Damages for which Parent may seek indemnification pursuant to a claim made hereunder); provided, however, that (i) the Stockholders’ Representative shall have the right to retain separate co-counsel, at the expense of the Company Stockholders; (ii) the Parent will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim to without the prior written consent of the Stockholders’ Representative which shall not be made so as to preserve any applicable attorney-client unreasonably withheld, conditioned or work-product privileges.
delayed; (eiii) Notwithstanding anything the Parent shall conduct the Third Party Defense actively and diligently and provide copies of all correspondence and related documentation in connection with the Third Party Defense to the contrary Stockholders’ Representative; and (iv) the Stockholders’ Representative will provide reasonable cooperation in the Third Party Defense. In the event that the Stockholders’ Representative has consented to any such settlement or resolution, neither the Stockholders’ Representative nor any Company Stockholder shall have any power or authority to object under Section 9.08 or any other provision of this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle IX to recovery by or on behalf of any Indemnified Person against the Holdback Shares or otherwise for the Parent Indemnifiable Damages with respect to such settlement or resolution.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lenco Mobile Inc.), Merger Agreement (Lenco Mobile Inc.)
Third Party Claims. Each Notice Within fifteen (15) Business Days after an Indemnitee receives written notice of Claim given by Acquiror, which involves a any third party claim or the commencement of any action by any third party which such Indemnitee reasonably believes may give rise to a claim for indemnification from an Indemnitor hereunder, such Indemnitee shall, 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 include with such notice copies of all notices and documents (a “Third Party Claim”)including court papers) served on or received by the Indemnitee from such third party. Upon receipt of such notice, the Indemnitor shall be resolved as follows:
(a) Ifentitled to participate in such claim or action, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) thereof with counsel reasonably satisfactory to the Indemnifying Persons fail Indemnitee, and to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure)settle or compromise such claim or action, (2) the Acquiror Indemnified Persons have received advice from counsel provided that an actual such settlement or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection compromise shall be effected only with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsIndemnitee, which consent shall not be unreasonably withheld, conditioned withheld or delayed.
, if (di) The Acquiror Indemnified Persons the settlement is other than for monetary damages, and the Indemnifying Persons remedies, in the Indemnitee’s reasonable judgment, could adversely affect it, or (ii) the Indemnitor has not agreed that the claim with respect thereto is a fully indemnifiable claim hereunder, or (iii) the Indemnitee has elected to be represented by separate counsel pursuant to clauses (i)-(iii) in the following sentence. After notice to the Indemnitee of the Indemnitor’s election to assume the defense of such claim or action (which notice shall use commercially reasonable efforts include an acknowledgement that the Indemnitee is entitled to avoid production of confidential information (consistent with Lawindemnification hereunder for such claim), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to the Indemnitor shall not be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything liable to the contrary Indemnitee under this Article VII for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof other than reasonable costs of investigation, unless the Indemnitee employs separate counsel, which it shall have the right to do if either (i) such claim or action involves remedies other than monetary damages and such remedies, in the Indemnitee’s reasonable judgment, could adversely affect such Indemnitee, (ii) the Indemnitee may have available to it one or more defenses or counterclaims which are inconsistent with one or more defenses or counterclaims which may be alleged by the Indemnitor, or (iii) such claim or action is brought by a Governmental Authority, and in any such event the 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 claim or action by delivery of a written notice assuming control of the defense, the Indemnitee shall be entitled to assume the defense thereof. Unless it has been conclusively determined through a final judicial determination (or settlement tantamount thereto) that the Indemnitor is not liable to the Indemnitee under this AgreementArticle VII, Section 8.1(d) the Indemnitee shall exclusively govern S Corporation Tax Proceedingsact 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 proper and adequate defense of any such claim or action, including making employees available on a mutually convenient basis to provide additional information and explanation of any relevant materials or to testify at any proceedings relating to such claim or action.
Appears in 2 contracts
Sources: Convertible Preference Share Purchase Agreement, Convertible Preference Share Purchase Agreement (Alibaba Group Holding LTD)
Third Party Claims. Each Notice of Claim given If a claim by Acquiror, which involves a third party (a “Third Party Claim”)is made against an Indemnified Person for which the Indemnified Person is entitled to indemnification under this Article X, the Indemnified Person shall be resolved promptly notify the Indemnifying Person in writing of such claim. Such notice shall set forth such information with respect to such claim as follows:
is then available to the Indemnified Person. In the event the Indemnifying Person elects to undertake to conduct and control, through counsel of its own choosing, and at its sole risk and expense, the good faith settlement and/or defense of such claim, the Indemnified Person shall cooperate fully with the Indemnifying Person in connection therewith; provided: (a) Ifthe Indemnified Person shall be entitled to participate in such settlement or defense through counsel of its own choosing, within thirty provided that the fees and expense of such counsel shall be fully borne by the Indemnified Person, and (30) days after a Notice of Claim is delivered to the Seller Representative, (xb) the Seller Representative produces Indemnifying Person shall have, on a notice timely basis, notified the Indemnified Person in writing of its election to undertake the settlement or defense and (y) such notice of election includes a written acknowledgment from confirmed in writing the Seller Representative on behalf obligation of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required Person to indemnify the Acquiror Indemnified Persons Person for all Damages the liability asserted in connection with such Third Party Claim Notice, the claim. The Indemnifying Persons Person shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with obtain the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned prior to ceasing to defend, settle or delayed.
(d) The Acquiror otherwise dispose of such claim if as a result thereof the Indemnified Persons Person would become subject to injunctive or other equitable relief or the business of the Indemnified Person would be materially adversely affected in any manner. So long as the Indemnifying Person is reasonably contesting any such claim in good faith, the Indemnified Person shall fully cooperate with the Indemnifying Person in the defense or settlement of such claim as is reasonably required by the Indemnifying Person, and the Indemnified Person shall not pay or settle such claim without the consent of the Indemnifying Persons Person; provided, however, that notwithstanding the foregoing, the Indemnified Person shall use commercially reasonable efforts have the right to avoid production pay or settle any such claim at any time without the consent of confidential information the Indemnifying Person if, and only if, in such event, the Indemnified Person shall have waived in writing any right to indemnification therefor. If the Indemnifying Person does not give the Indemnified Person the timely written notice of the undertaking referred to in clause (consistent with Lawb) of this Section 10.6, the Indemnified Person shall thereafter have the right to contest, defend, settle or compromise the claim as a reasonably prudent person would (as if no indemnification were available), but shall not settle or compromise such claim except as provided in Section 10.5, and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesshall keep the Indemnifying Person informed of the progress of such matter.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Acquisition Agreement (Quadramed Corp), Acquisition Agreement (Resource Health Partners Lp)
Third Party Claims. Each Notice In the event Parent becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”) which Parent reasonably believes may result in a claim for indemnification pursuant to this Article VIII, Parent shall promptly notify the Stockholders’ Representative of such claim with an Indemnification Claim Notice (a “Third Party Notice”), and shall provide a copy of such Third Party Notice to the Escrow Agent, if the Escrow Period has not expired and funds remain in the Escrow Fund, and the Third Party Notice shall be resolved as follows:
(a) Ifaccompanied by copies of any documentation submitted by the third party making such Third Party Claim, within thirty (30) days after if any; provided, that no delay or failure on the part of Parent in delivering a Third Party Notice of Claim is delivered shall cause any Indemnified Party to forfeit any indemnification rights under this Article VIII except to the Seller Representativeextent that the Company Indemnitors are materially prejudiced by such delay or failure. Upon receipt of a Third Party Notice, the Stockholders’ Representative shall be entitled (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors Company Indemnitors and at their expense), or, in the Sellers (event indemnification is being sought hereunder from fewer than all the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim NoticeCompany Indemnitors, the Indemnifying Persons applicable Company Indemnitors shall have the rightbe entitled, at their expense, to participate in, but not the obligation to (i) take control of control, determine or conduct, the defense and investigation of such Third Party Claim. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim and the Stockholders’ Representative (ii) employ and engage attorneys of their own choice (subject to or, in the approval of Acquirorevent indemnification is being sought hereunder from fewer than all the Company Indemnitors, such approval applicable Company Indemnitor) shall not be entitled to control any negotiation of settlement, adjustment or compromise with respect to any such Third Party Claim; provided, however, that except with the consent of the Stockholders’ Representative (such consent not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense no settlement of such Third Party Claim, (3) any such Third Party Claim seeks a finding or admission with third party claimants shall be determinative of a violation the amount of Losses relating to such matter; provided further, however, that the consent of the Stockholders’ Representative with respect to any settlement of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, shall be deemed to have been given unless the Stockholders’ Representative shall have objected within twenty (520) days after a written request for such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) consent by Parent. In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party ClaimStockholders’ Representative has consented to any such settlement, adjustment or compromise, the Acquiror Indemnified Persons Company Indemnitors or the consenting Company Indemnitors, as applicable, shall cooperate in all reasonable respects, at have no power or authority to object under any provision of this Article VIII to the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense amount of such Third Party Claim and any appeal arising therefromsettlement, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, adjustment or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefromcompromise.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Third Party Claims. Each Notice (i) If any Debentureholder receives notice of Claim given the commencement of any claim or action made or asserted or brought by Acquiror, which involves any Person (who is not a third party Party to this Deed or a Debentureholder) against the Debentureholder (a “"Third Party Claim”)") which has given or could give rise to a right of indemnification of such Debentureholder by the Issuer under this Deed, the Debentureholder shall be resolved give the Issuer as follows:
soon as reasonably practicable, but in any event not later than twenty (a20) IfBusiness Days thereof, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation notice of such Third Party Claim; provided that, any failure or delay of the Debentureholder to notify the Issuer shall not relieve the Issuer of its obligation to indemnify, defend and hold harmless the Debentureholder as per the provisions of this Deed; provided further that any additional loss or liability incurred by the Debentureholder solely on account of any delay in the delivery of such notice shall be to the account of the Debentureholder (and the Issuer shall not, for the avoidance of doubt, be liable for such additional loss or liability).
(ii) employ and engage attorneys of their own choice (subject The above notice by the Debentureholder shall describe the Third Party Claim in reasonable detail to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseextent reasonably possible, and shall include copies of all material written evidence thereof to the extent reasonably available with the Debentureholder (including any material received from the relevant third party) and shall indicate the estimated amount, if reasonably practicable, of the loss or liability that has been or may be sustained by the Debentureholder.
(iii) compromise or settle such Third Party Claim, which compromise or settlement The Issuer shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a any Third Party Claim if at the Issuer’s expense and by the Issuer’s own counsel; provided that the Debentureholder shall be entitled to participate in the defense (1at its own expense) of any Third Party Claim with counsel selected by it. In the Indemnifying Persons fail to actively and diligently conduct event that the Issuer assumes the defense of the any Third Party Claim (after notice and reasonable opportunity Claim, it shall have the right to cure)take such action as it deems necessary to avoid, (2) the Acquiror Indemnified Persons have received advice from counsel that an actual dispute, defend, appeal or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of make counterclaims pertaining to any such Third Party Claim, subject to Debentureholder's right to participate in the defense (3at its own expense) of any Third Party Claim with counsel selected by it. If the Issuer elects not to defend such Third Party Claim seeks a finding or admission fails to notify the Debentureholder in writing of a violation of any criminal Law by an Acquiror Indemnified Person, (4) its election to defend such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, Debentureholder may defend such Third Party Claim and have the sole power seek indemnification under this Deed, arising from or relating to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. .
(iv) Notwithstanding anything herein to contained herein, neither the contrary, whether Issuer nor the Debentureholder shall enter into a settlement or not the Indemnifying Persons shall have assumed the defense compromise of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such any Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedother Party.
(dv) The Acquiror Indemnified Persons and For the Indemnifying Persons shall use commercially reasonable efforts to avoid production avoidance of confidential information (consistent with Law)doubt, and to cause all communications among employees, counsel and others representing any party to it is clarified that in the event a Third Party Claim to be made so as to preserve results in any applicable attorney-client or work-product privileges.
Loss for the Debentureholder (e) Notwithstanding anything including pursuant to the contrary Issuer assuming defense of such Third Party Claim pursuant to the provisions of Clause 10.2 (A) (iii)), the Issuer shall indemnify the Debentureholder in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsaccordance with the provisions of Clause 10.1.
Appears in 2 contracts
Sources: Debenture Trust Deed, Debenture Trust Deed
Third Party Claims. Each Notice In the case of Claim given by Acquiror, which involves a any third party (Proceeding as to which indemnification is sought by an Indemnitee, the Indemnitor shall have 20 Business Days after receipt of a “Third Party Claim”)Claim Notice to notify the Indemnitee that it elects to conduct and control such Proceeding. If the Indemnitor elects to conduct and control such Proceeding, the Indemnitor shall be resolved as follows:
(a) Ifagree promptly to reimburse the Indemnitee for the full amount of any Damages resulting from such Proceeding, within thirty (30) days except fees and expenses of counsel for the Indemnitee incurred after a Notice the assumption of Claim is delivered to the Seller Representativeconduct and control of such Proceeding by the Indemnitor. If the Indemnitor does not give the foregoing notice, (x) or if the Seller Representative produces a notice of election and (y) Indemnitor gives such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors but fails to prosecute vigorously and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with diligently or settle such Third Party Claim NoticeProceeding, the Indemnifying Persons Indemnitee shall have the right, but not at the obligation to (i) take control sole expense of the defense Indemnitor, to defend, conduct, control and investigation settle such Proceeding, and the Indemnitor shall cooperate with the Indemnitee in connection therewith, provided, that (x) 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 Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to counsel shall be borne by the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseIndemnitor, and (iiiy) the Indemnitee may not compromise or settle such Third Party Claim, which compromise or settlement shall be made only with Proceeding without the written consent of Acquiror; provided, that such the Indemnitor (which consent will not be required if unreasonably withheld or delayed), unless (i) the sole relief provided is monetary Damages, and (ii) such settlement includes an unconditional release in favor of the Acquiror Indemnified Persons and provides solely Indemnitor by the third-party claimant from all liability with respect to such claim (other than liability for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons any amounts in connection with such settlement). If the defense Indemnitor gives the foregoing notice, subject to the first and second sentences of this Section 8.5, the Indemnitor shall have the right, at the sole expense of the Indemnitor, to defend, conduct, control and settle such Proceeding by all appropriate proceedings (which proceedings will be vigorously and diligently prosecuted by the Indemnitor to a final conclusion or settlement), with counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate with the Indemnitor in connection therewith, provided, that (x) the Indemnitor shall permit the Indemnitee to participate in such conduct or settlement through counsel chosen by the Indemnitee, but the fees and expenses of such Third Party Claimcounsel shall be borne by the Indemnitee, and (3y) the Indemnitor may not compromise or settle any such Third Party Claim seeks a Proceeding without the consent of the Indemnitee (which consent will not be unreasonably withheld or delayed) unless (i) there is no finding or admission of a any violation of any criminal Law by an Acquiror Indemnified the Indemnitee or any violation by the Indemnitee of the rights of any Person, (4ii) 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 Third Party Claim seeks settlement includes an injunction or other equitable remedies unconditional release in favor of the Indemnitee by the third-party claimant from all liability with respect of an Acquiror Indemnified Person or its business, (5) to such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) claim. In the event that case of any third party Proceeding as to which indemnification is sought by the Indemnifying Persons defend Indemnitee which involves a claim for Damages other than solely for money Damages which could have a continuing effect on the Acquiror Indemnified Persons against a Third Party Claimbusiness of the Indemnitee, the Acquiror Indemnified Persons Indemnitee and the Indemnitor shall cooperate in all reasonable respects, at jointly control the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense conduct of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying PersonsProceeding. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons parties hereto shall use their commercially reasonable efforts to avoid production of confidential information (consistent minimize any Damages from claims by third parties and shall act in good faith in responding to, defending against, settling or otherwise dealing with Law)such claims, and to cause all communications among employees, counsel and others representing notwithstanding any party to a Third Party Claim to be made so dispute as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in liability under this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.Article VIII
Appears in 2 contracts
Sources: Merger Agreement (Vampt America, Inc.), Merger Agreement (Coronado Corp.)
Third Party Claims. Each Notice In the case of Claim given by Acquiror, which involves a any third party action, suit, claim, litigation, proceeding, arbitration, audit, investigation, or hearing (a whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, any Governmental Authority (an “Third Party ClaimAction”)) as to which indemnification is sought by an Indemnitee, the Indemnitor shall be resolved as follows:
(a) If, within thirty (30) have 15 business days after receipt of a Claim Notice to notify the Indemnitee that it elects to conduct and control such Action. If the Indemnitor elects to conduct and control such Action, the Indemnitor shall agree promptly to reimburse the Indemnitee for the full amount of Claim is delivered to any Damages resulting from such Action, except fees and expenses of counsel for the Seller Representative, (x) Indemnitee incurred after the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf assumption of the Seller Guarantors conduct and control of such Action by the Sellers (Indemnitor. If the “Indemnifying Persons”) that Indemnitor does not give the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeforegoing notice, the Indemnifying Persons Indemnitee shall have the right, at the sole expense of the Indemnitor, to conduct and control such Action, provided, that (x) 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, and (y) the Indemnitee may not compromise or settle such Action without the obligation to consent of the Indemnitor (which consent will not be unreasonably withheld or delayed), unless (i) take control there is no finding or admission of any violation of applicable law by the Indemnitor or any violation by the Indemnitor of the defense rights of any Person and investigation of such Third Party Claimno effect on any other claims that may be made against the Indemnitor, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquirorsole relief provided is monetary Damages that are paid in full by the Indemnitee, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which the Indemnitor shall have no liability with respect to any compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if and (iv) such settlement includes an unconditional release in favor of the Acquiror Indemnified Persons and provides Indemnitor by the third-party claimant from all liability with respect to such claim, or (v) the claim is solely for payment other than money Damages which would not affect the business of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding Indemnitor and the foregoing, the Indemnifying Persons shall not have the Indemnitee waives any right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense indemnification for any claim of the Third Party Claim type identified in this clause (after notice and reasonable opportunity to curev), (2) other than with respect to reimbursement of the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons reasonable fees and the Indemnifying Persons expenses incurred in connection with the defense of such Third Party ClaimAction. If the Indemnitor gives the foregoing notice, subject to the first and second sentences of this Section 6.5, the Indemnitor shall have the right, at the sole expense of the Indemnitor, to conduct and control such Action with counsel reasonably acceptable to the Indemnitee, and the Indemnitee shall cooperate with the Indemnitor in connection therewith, provided, that (3x) the Indemnitor shall permit the Indemnitee to participate in such Third Party Claim seeks a conduct or settlement through counsel chosen by the Indemnitee, but the fees and expenses of such counsel shall be borne by the Indemnitee, and (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 a any violation of applicable law by the Indemnitee or any criminal Law violation by an Acquiror Indemnified Personthe Indemnitee of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, (4ii) 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 Third Party Claim seeks settlement includes an injunction unconditional release in favor of the Indemnitee by the third-party claimant from all liability with respect to such claim. In the case of any third party Action as to which indemnification is sought by the Indemnitee which involves a claim for Damages other than solely for money Damages which could have a continuing effect on the business of the Indemnitee, the Indemnitee and the Indemnitor shall jointly control the conduct of such Action. The parties hereto shall use their reasonable best efforts to minimize any Damages from claims by third parties and shall act in good faith in responding to, defending against, settling or other equitable remedies in respect of an Acquiror Indemnified Person or its businessotherwise dealing with such claims, (5) such Third Party Claim relates notwithstanding any dispute as to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims liability under this Article 12, would not be not be fully indemnified hereunderVI.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Transfer and Purchase Agreement (Pma Capital Corp), Transfer and Purchase Agreement (Pma Capital Corp)
Third Party Claims. Each Notice If an Indemnitee becomes aware of Claim given by Acquiror, which involves a claim of a third party (including for all purposes of this Section 7.04, any Governmental Authority) (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying PersonsAction”) that such Indemnitee believes, in good faith, may result in a claim by it against an Indemnitor, such Indemnitee shall notify the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation applicable Indemnitor of such Third Party Claimclaim as promptly as practicable, (ii) employ and engage attorneys of their own choice (subject provided, however, that the failure to so notify the Indemnitor shall not affect rights to indemnification hereunder except to the approval of Acquiror, extent that the Indemnitor is materially prejudiced by such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement failure. The Indemnitor shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume and conduct the defense of such claim; provided, however, that Indemnitor may not assume control of the defense of any Third Party Action if (i) the Third Party Action seeks injunctive relief against the Indemnitee but not against the Indemnitor or (ii) if the Losses of Indemnitee in respect of claims subject to the Indemnification Cap in such Third Party Action would reasonably be expected to be in excess of the Indemnification Cap . The Indemnitor shall conduct such defense in a commercially reasonable manner at its own expense, and shall be authorized to settle any such claim without the consent of the Indemnitee; provided, however, that: (a) the Indemnitor shall not be authorized to encumber any assets of the Indemnitee or agree to any restriction that would apply to the Indemnitee or the conduct of the Indemnitee’s business; (b) the Indemnitor shall have paid or caused to be paid any amounts arising out of such settlement; and (c) a condition to any such settlement shall be a complete release of the Indemnitee with respect to such third party claim. The Indemnitee shall be entitled to participate in (but not control, except as set forth in the proviso to the second sentence of this Section 7.04) the defense of any Third Party Action with its own counsel and at its own expense. The Indemnitee shall cooperate fully with the Indemnitor in the defense of any Third Party Action. If the Indemnitor chooses not to assume the defense of any Third Party Action in accordance with the provisions hereof, the Indemnitee may defend such Third Party Action in a commercially reasonable manner and may settle such Third Party Action after giving written notice of the terms thereof to the Indemnitor. If the Indemnitor may not assume the control of the defense of a Third Party Claim if Action pursuant to the proviso to the second sentence of this Section 7.04, (1x) the Indemnifying Persons fail to actively and diligently Indemnitee shall conduct the such defense of the Third Party Claim (after notice and in a commercially reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or manner at its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of settle any such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder claim without the prior written consent of the Indemnifying Persons, Indemnitor (which consent shall not be unreasonably withheld, conditioned ) unless (a) the Indemnitee shall not be authorized to encumber any assets of the Indemnitor or delayed.
agree to any restriction that would apply to the Indemnitor or the conduct of the Indemnitor’s business; (db) The Acquiror Indemnified Persons the Indemnitee shall have paid or caused to be paid any amounts arising out of such settlement and Indemnitor shall not be liable to any Indemnitee or any other Person for any such amounts; and (c) a condition to any such settlement shall be a complete release of the Indemnifying Persons Indemnitor with respect to such third party claim and (y) the Indemnitor shall use commercially reasonable efforts be entitled to avoid production of confidential information (consistent participate in such Third Party Action with Law), and to cause all communications among employees, its own counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesat its own expense.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Emcore Corp), Asset Purchase Agreement (Emcore Corp)
Third Party Claims. Each Notice of Claim given If a claim by Acquiror, which involves a third party is made ------------------ against a Seller Indemnified Party, and if such party (a “Third the "Indemnified Party") intends to seek indemnity with respect thereto under Section 5.1, 5.4, 8.7, or 13.1, the Indemnified Party Claim”shall promptly furnish written notice to Buyer (the "Indemnitor"), of such claims. The Indemnitor shall have thirty (30) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with it in connection therewith; provided that the Indemnitor shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, however, the fees and expenses of such counsel shall be resolved borne by such Indemnified Party. So long as follows:
the Indemnitor, at Indemnitor's cost and expense, (a1) has undertaken the defense of, and assumed full responsibility for all indemnified liabilities with respect to, such claim, (2) is reasonably contesting such claim in good faith, by appropriate proceedings, and (3) 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 property of the 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 Indemnified Party 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 after a Notice the receipt of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a Indemnified Party's notice of election and (y) such notice a claim of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeindemnity hereunder, the Indemnifying Persons shall have Indemnitor does not notify the right, but not the obligation to (i) take control of the defense and investigation of such Third Indemnified Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the samethat it elects, at the Indemnifying Persons’ sole Indemnitor's cost and expense, to undertake the defense thereof and (iii) compromise assume full responsibility for all indemnified liabilities with respect thereto, or settle gives such Third Party Claim, which compromise notice and thereafter fails to contest such claim in good faith or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release to prevent action to foreclose a lien against or attachment of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoingParty's property as contemplated above, the Indemnifying Persons shall not have the right to assume the defense of a Third Indemnified Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingcontest, defend settle and/or compromise the claim and, to the extent the actions, if any, taken by the Indemnified Party in settling or compromising such Third claim are reasonable and in good faith, the Indemnified Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ shall not thereby waive any right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein indemnity therefor pursuant to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cec Resources LTD), Stock Purchase Agreement (Carbon Energy Corp)
Third Party Claims. Each Notice Whenever any Indemnified Person shall learn of Claim given a claim made by Acquirora Person other than one of the Parties that, which involves if allowed (whether voluntarily or by a third party (a “Third Party Claim”judicial or quasi-judicial tribunal or agency), would entitle such Indemnified Person to indemnification under this Article 7, before paying the same or agreeing thereto the Indemnified Person shall forward the claim to the Indemnitor within ten days of receipt thereof if such claim is in writing and shall otherwise notify the Indemnitor in writing within ten days of receipt of such claim; provided, however, that the Indemnified Person’s right to indemnification shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered diminished by the failure to give prompt notice only to the Seller Representative, (x) extent that the Seller Representative produces a notice of election and (y) Indemnified Person’s failure to give such notice of election includes a written acknowledgment from was prejudicial to the Seller Representative on behalf interests of the Seller Guarantors and Indemnitor. Unless the Sellers (Indemnitor gives written notice to the “Indemnifying Persons”) that the Indemnifying Persons would be required Indemnified Person within 15 days disputing Indemnitor’s indemnity obligations hereunder with respect to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeclaim, the Indemnifying Persons Indemnitor shall have the right, but not right to control the obligation to (i) take control defense of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the sameclaim, at the Indemnifying Persons’ sole cost and expenseIndemnitor’s cost, and (iii) compromise or settle such Third Party Claim, which compromise or settlement with counsel selected by the Indemnitor but acceptable to the Indemnified Person in its reasonable discretion. The Indemnitor’s election to control the defense of the claim shall be made only with deemed acceptance by the written consent Indemnitor of Acquiror; providedits indemnity obligations hereunder to the extent such claim results in Losses to the Indemnified Person. The Indemnitor’s control over the claim shall include the right to lead any investigation, that such consent will not be required if such settlement includes an unconditional release negotiation, settlement, litigation or other contest of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullclaim. Notwithstanding the foregoing, the Indemnifying Persons Indemnitor shall not have the no right to assume enter into any settlement without the defense Indemnified Person’s consent if the settlement would involve any foreclosure, injunctive or other equitable relief or an admission of a Third Party Claim if (1) wrongdoing on the Indemnifying Persons fail to actively and diligently conduct the defense part of the Third Party Claim (after notice Indemnified Person or involve a payment that would exceed the limitation of liability in Article 8. The Indemnified Person shall participate in any such investigation, negotiation, settlement, litigation or other contest, as reasonably requested by the Indemnitor and reasonable opportunity at the Indemnitor’s cost. The Indemnitor shall keep the Indemnified Person apprised of important developments related to cure)the claim, (2) shall promptly respond to questions the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Person may direct to the Acquiror Indemnitor with respect to the claim and shall generally cooperate with the Indemnified Persons and the Indemnifying Persons Person in connection with the defense claim. If any suit or proceeding involves the potential imposition of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror liability upon the Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer potential or Material Supplieractual conflict of interest between the Indemnified Person and the Indemnitor, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or Indemnitor does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation elect to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to claim within the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim15-day period provided above, the Acquiror Indemnified Persons shall not settlePerson may, compromise in its reasonable discretion, either defend such suit or pay such Third Party Claim for which they seeks indemnification hereunder proceeding or settle the claim that is the basis thereof, without the prior written consent of the Indemnifying PersonsIndemnitor, which consent and the Indemnitor shall nevertheless pay the Indemnified Person’s Losses. The Indemnified Person shall not be unreasonably withheldrequired to refrain from paying any claim that has matured by a court judgment or decree, conditioned unless an appeal is duly taken therefrom and execution thereof has been stayed, nor shall it be required to refrain from paying any claim where the delay to pay such claim would result in the foreclosure of a lien upon any of the property of the Indemnified Person, or delayedwhere any delay in payment would cause the Indemnified Person an incremental economic loss, unless the Indemnitor shall have agreed to compensate the Indemnified Person for such loss.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Home Improvement Financing Program Agreement, Loan Agreement (SolarMax Technology, Inc.)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfIn the event an Indemnified Person becomes aware of a third-party claim that Targeted or such Indemnified Person believes may result in a demand against the Indemnification Escrow Shares, within thirty (30) days after a Notice Targeted shall notify the Stockholders' Representative of Claim is delivered such claim; provided, however, that failure to so notify the Stockholders' Representative shall not relieve the Genovo Stockholders from any liability they have under this Article Eight or the Escrow Agreement with respect to such third-party claim, except to the Seller Representativeextent the Stockholders' Representative demonstrates that the indemnifying party's ability to resolve such third-party claim is adversely affected by Targeted's failure to notify. That number of Indemnification Escrow Shares that, in the reasonable judgment of Targeted, subject to the objection of the Stockholders' Representative and the subsequent arbitration of the claim in accordance with Section 4(e) of the Escrow Agreement, would be necessary to satisfy a claim for indemnification with respect to such third-party claim, if such third-party claim were to be determined in a matter adverse to the Indemnified Person and the Indemnified Person 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 provisions of Sections 8.2 and 8.3 of this Agreement.
(xb) the Seller Representative produces a notice Within 10 days of election and (y) receipt of such notice of election includes a written acknowledgment from third-party claim, the Seller Stockholders' Representative on behalf shall be entitled to elect to participate in the defense of such claim and, to the extent that the Stockholders' Representative so desires (unless any Genovo Stockholder is also party to such claim and either of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) Indemnified Party or Targeted determines in good faith that the Indemnifying Persons joint representation would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeinappropriate), the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if such claim; provided that (1i) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual participation in or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law claim by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not the Stockholders' Representative shall be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that Genovo Stockholders, as provided in Section 5(b) of the Acquiror Indemnified Persons are entitled to indemnification hereunder)Escrow Agreement; it being understood that (ii) the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim Stockholders' Representative shall not be adversely affected by assuming entitled to assume defense of such claim without Targeted'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 Third Party Claim. Notwithstanding anything herein claim shall conclusively establish that such claim is within the scope of and subject to indemnification by the contrary, whether Genovo Stockholders; and (iv) no compromise or not the Indemnifying Persons shall have assumed the defense settlement of such Third Party Claim, claim may be effected by the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Stockholders' Representative without the prior written consent of the Indemnifying PersonsIndemnified Party and Targeted 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 Person or Targeted, (B) the sole relief provided is monetary damages that are paid in full by the Genovo Stockholders; and (C) neither the Indemnified Person nor Targeted will have any liability with respect to any compromise or settlement of such claim without its consent. In all other cases, Targeted shall have the right in its discretion to defend, compromise or settle any such claim; provided, however, that Targeted shall not settle such claim without the consent of the Stockholders' Representative (which consent shall not be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and ). If the Indemnifying Persons Stockholders' Representative consents in writing to any such settlement, the Stockholders' Representative shall use commercially reasonable efforts have no power or authority to avoid production object under any provision of confidential information (this Article Eight or the Escrow Agreement to the amount of any claim by Targeted against the Indemnification Escrow Shares consistent with Law)such settlement. Notwithstanding the foregoing, and if an Indemnified Person or Targeted 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 Material Adverse Effect on Targeted or any affiliate of Targeted, other than as a result of monetary damages for which it would be entitled to cause all communications among employeesindemnification under this Article Eight or the Escrow Agreement, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client such Indemnified Person or work-product privileges.
(e) Notwithstanding anything Targeted may, by notice to the contrary in this AgreementStockholders' Representative, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsassume the exclusive right to defend, compromise, or settle such claim.
Appears in 2 contracts
Sources: Merger Agreement (Targeted Genetics Corp /Wa/), Merger Agreement (Targeted Genetics Corp /Wa/)
Third Party Claims. Each Notice If any Indemnitee receives notice of Claim given the assertion of any claim or of the commencement of any Action by Acquirorany Person that is not either a Buyer Indemnitee or a Seller Indemnitee (each, which involves a third party (a “Third Party Claim”)) against such Indemnitee, shall be resolved as follows:
(a) Ifwith respect to which an Indemnitor is obligated to provide indemnification under this Agreement, within thirty (30) the Indemnitee will give such Indemnitor prompt written notice thereof, but in any event not later than 30 days after a Notice receipt of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim; provided, however, that the 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 with respect to any particular Losses 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 acknowledging its obligation to indemnify the Indemnitee against any and all Losses that may result from the Third Party Claim, to assume the investigation and defense thereof at such Indemnitor’s expense with counsel reasonably satisfactory to the Indemnitee; provided, that (i) the Indemnitor shall be entitled to direct the defense for only so long as the Indemnitor conducts the defense in an active and diligent manner, (ii) employ and engage attorneys the Third Party Claim is not in respect of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseany matter involving criminal liability, and (iii) compromise the primary remedy sought under the Third Party Claim is not the imposition of any equitable remedy that would be binding upon the Indemnitee or settle such any of its affiliates. Whether or not the Indemnitor elects to assume the investigation and defense of any Third Party Claim, which compromise or settlement the Indemnitee shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume employ separate counsel and to participate in the investigation and defense thereof. The Indemnitor will not, as long as it actively and diligently conducts the defense of a Third Party Claim if (1) any Action on behalf of the Indemnifying Persons fail Indemnitee, be liable to actively and diligently conduct the Indemnitee for any fees of such other counsel or any other expenses with respect to the defense of such Action incurred by the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons Indemnitee in connection with the defense of such Action; provided that notwithstanding the foregoing, the Indemnitor shall pay the reasonable attorneys’ fees of the Indemnitee if (i) the Indemnitee’s counsel reasonably concludes and advises that there are defenses available to such Indemnitee that are different from or in addition to those available to the Indemnitor; or (ii) there is a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitor and Indemnitee. Without the prior written consent of an Indemnitee, the Indemnitor will not enter into any settlement of or consent to the entry of judgment in connection with any Third Party ClaimClaim that (i) would lead to liability or create any financial or other obligation on the part of the Indemnitee, (3ii) does not contain, as an unconditional term thereof, the unconditional release of the Indemnitee from all liability in respect of such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim is not dismissed against the Indemnitee with prejudice and without the imposition of any financial or other obligation on the Indemnitee (iii) admits the liability or fault of the Indemnitee, (iv) seeks an injunction or other equitable remedies relief against the Indemnitee, or (v) involves any criminal or quasi-criminal litigation to which the Indemnitee is a party (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 10 days after its receipt of such notice, the Indemnitee may continue to contest such claim, free of any participation by the Indemnitor, and the amount of any ultimate liability with respect of an Acquiror Indemnified Person or its business, (5) to such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend Indemnitor has an obligation to pay hereunder shall be limited to the Acquiror Indemnified Persons against a 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. The parties will cooperate with each other in good faith in the defense or prosecution of any Third Party Claim, including the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons retention and their attorneys in the investigation, trial provision of records and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related information that are reasonably relevant to such Third Party Claim, in and making employees and other representatives reasonably available on a mutually convenient basis to provide additional information and explanation of any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrommaterial provided hereunder.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Supervalu Inc), Asset Purchase Agreement (Roundy's, Inc.)
Third Party Claims. Each Notice The obligations and liabilities of Claim given any party hereto against which indemnification is sought hereunder with respect to claims resulting from the assertion of liability by Acquirorthird parties shall be subject to this Section 8.2(c).
(i) Promptly after receipt by any Indemnified Person of notice of any demand or claim or the commencement of any action, which involves a third party proceeding or investigation (an “Asserted Liability”) that could reasonably be expected to result in Damages, the Indemnified Person shall give notice thereof (a “Third Party ClaimClaims Notice”), shall be resolved as follows:
(a) If, within thirty (30to any other party obligated to provide indemnification pursuant to Section 8.2(a) days after a Notice of Claim is delivered to the Seller Representative, (xor Section 8.2(b) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) ); provided that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense delivery of a Third Party Claim Claims Notice from a Buyer Indemnified Person to the Stockholder Representative shall be deemed to satisfy the requirements of this sentence. Each Claims Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if (1necessary) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) Damages that have been or may be suffered by the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation Person. The rights of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim hereunder shall not be adversely affected by assuming its failure to give, or its failure to timely give, a Claims Notice with respect thereto unless, and if so, only to the extent that, the Indemnifying Person is prejudiced thereby.
(ii) The Indemnifying Person shall have the right, exercisable by written notice to the Indemnified Person within 60 days of receipt of a Claims Notice from the Indemnified Person, to assume the defense of such Third Party Claim. Notwithstanding anything herein Asserted Liability, using counsel selected by the Indemnifying Person and reasonably acceptable to the contraryIndemnified Person, whether or not if, but only if, the Indemnifying Persons shall have assumed Person first agrees in writing that (i) the defense Indemnifying Person is responsible without a reservation of rights for all Damages relating to all matters referenced in the Claims Notice (including all Asserted Liabilities) (except to the extent that the Indemnifying Person is not responsible for such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent Damages as a result of application of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(dproviso to Section 8.2(a) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.or
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Great Lakes Dredge & Dock Corp)
Third Party Claims. Each Notice (i) In the case of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), the Indemnifying Person shall be resolved have the right in its sole discretion to conduct the defense of such Third Party Claim and to compromise or settle such Third Party Claim; provided, however, that in no event shall the Indemnifying Person compromise or settle such Third Party Claim without the prior written consent of the Indemnified Person if (1) such compromise or settlement does not include as follows:
(a) If, within thirty (30) days after an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Person of a Notice of Claim is delivered full release from all liability in respect to the Seller Representativesuch Third Party Claim, (x2) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Seller Representative produces a notice of election and Indemnified Person, (y3) such notice of election compromise or settlement includes a written acknowledgment from the Seller Representative (A) any admission or statement suggesting any wrongdoing or liability on behalf of the Seller Guarantors and Indemnified Person or (B) any term that in any manner affects, restrains or interferes with the Sellers business of the Indemnified Person or any of its Affiliates or (4) such settlement or compromise imposes liability on the “part of the Indemnified Person that is not indemnified by the Indemnifying Persons”) Person hereunder; provided further that the Indemnifying Persons would be required Person shall reimburse the Indemnified Person for the reasonable costs of the Indemnified Person relating to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeand the conduct of any defense of such Third Party Claim.
(ii) If requested by the Indemnified Person, the Indemnifying Persons shall have Person will provide to the rightIndemnified Person copies of all pleadings, but not notices, communications, documentary or other evidence with respect to such Third Party Claim, except where receipt of such documents would waive any claim of privilege by the obligation Indemnifying Person or its legal representative.
(iii) The Indemnified Person is entitled to, at its own cost and expense, liaise with the Indemnifying Person in relation to (i) take control of the defense and investigation of such Third Party Claim, and participate in, but not to determine or conduct, any defense of a Third Party Claim or settlement negotiations with respect to a Third Party Claim unless the Indemnifying Person has in its sole discretion determined to permit the Indemnified Person to defend such Third Party Claim, in which event the Indemnifying Person shall have the right to participate in, but not to determine or conduct, any defense of a Third Party Claim or settlement negotiations with respect to such Third Party Claim.
(iiiv) employ No settlement, resolution or compromise of such Third Party Claim by the Indemnified Person is determinative of the existence or amount of any Damages in respect of such Third Party Claim, unless the Indemnifying Person consents in writing to such settlement, resolution or compromise, which consent must not be unreasonably withheld, delayed or conditioned, and engage attorneys of their own choice (subject shall be deemed to have been given by the Indemnifying Person to the approval Indemnified Person unless the Indemnifying Person notifies the Indemnified Person in writing within ten (10) Business Days of Acquirora request by the Indemnified Person that it does not give its consent. In addition, such approval notwithstanding anything else to the contrary, the Indemnifying Person shall not settle or compromise any Third Party Claim in respect of Taxes without the prior written consent of the relevant Indemnified Person, not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 2 contracts
Sources: Transaction Agreement (CAESARS ENTERTAINMENT Corp), Transaction Agreement (Caesars Acquisition Co)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of In the event that any Third Party Claim is delivered asserted or commenced against an Indemnitee with respect to which such Indemnitee is entitled to indemnification under this Section 9.7, the Seller RepresentativeIndemnitee shall: (A) promptly notify the other Party of its existence, setting forth in writing with reasonable specificity the facts and circumstances of which such Indemnitee received notice; and (xB) specify the Seller Representative produces a basis hereunder upon which the Indemnitee’s Claim for indemnification is asserted. Any notice of election and a Third Party Claim delivered by a Motif Indemnitee to Nuprim Shareholders’ Representative shall satisfy any obligation of such Motif Indemnitee to provide notice to any of Nuprim Shareholders pursuant to this Section 9.7.
(yb) such notice of election includes a written acknowledgment from Except as herein provided, the Seller Representative on behalf of the Seller Guarantors Indemnitee shall not, and the Sellers Party from whom indemnification is sought (the “Indemnifying PersonsIndemnitor”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeshall, the Indemnifying Persons shall have the rightright to contest, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdefend, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise litigate or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively is so tendered and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of thereafter the Third Party Claim Notice Indemnitor accepts such tender and acknowledges in writing without qualification its indemnification obligation hereunder, subject only to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimlimitations on indemnification set forth in this Agreement, then the Acquiror Indemnified Persons including Section 9.3. The Indemnitee shall have the right to retain separate be represented by counsel of their choosingat its own expense in any such contest, defense, litigation or settlement conducted by the Indemnitor. The Indemnitor shall lose its right to contest, defend, litigate and settle the Third Party Claim if it shall fail to diligently contest the Third Party Claim. So long as the Indemnitor has not lost its right to contest, defend, litigate and settle as herein provided, the Indemnitor shall have the right to contest, defend such and litigate the Third Party Claim and shall have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a enter into any settlement of any Third Party Claim shall not be adversely affected by assuming the defense Claim; provided, that such settlement includes an unconditional written release from all liability in respect of such Third Party Claim. Notwithstanding anything herein to ; provided, further, that the contrary, whether or Indemnitor may not the Indemnifying Persons shall have assumed the defense enter into any settlement of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such any Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
) of the Indemnitee if pursuant to or as a result of such settlement: (dA) injunctive or other equitable relief would be imposed against the Indemnitee; (B) such settlement would or could reasonably be expected to lead to any liability or create any financial or other obligation on the part of the Indemnitee; or (C) such settlement would adversely affect the conduct of the Business. The Acquiror Indemnified Persons and the Indemnifying Persons Indemnitor shall use commercially reasonable efforts not be entitled to avoid production assume control of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if: (X) the Third Party Claim relates to or arises in connection with any criminal Proceeding, action, indictment or allegation; (Y) the Third Party Claim seeks injunctive or other equitable relief, or Motif reasonably believes that the Third Party Claim, if adversely determined, would impair in any material respect the financial condition, business, operations, reputation or prospects of Motif; or (Z) the interests of the Indemnitee in the Third Party Claim is or can reasonably be expected to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything adverse to the contrary interests of the Indemnitor. If the Indemnitee has assumed control of the defense of a Third Party Claim pursuant to the foregoing sentence, it shall not agree to any settlement without the consent of the Indemnitor (which consent shall not be unreasonably withheld, conditioned or delayed), provided Indemnitor has acknowledged in writing without qualification its indemnification obligation hereunder, subject only to the limitations on indemnification set forth in this Agreement, including Section 8.1(d9.3. Subject to any applicable limitations set forth in Section 9.3, all expenses (including attorneys’ fees) incurred by the Indemnitor in connection with the foregoing shall exclusively govern S Corporation Tax Proceedingsbe paid by the Indemnitor. If an Indemnitee is entitled to indemnification against a Third Party Claim, and the Indemnitor fails to accept a tender of the defense of a Third Party Claim pursuant to this Section 9.7(b), or if, in accordance with the foregoing, the Indemnitor shall lose its right to contest, defend, litigate and settle such a Third Party Claim, the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in reasonable good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable. If, pursuant to the preceding sentence, the Indemnitee so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder, the Indemnitee shall be reimbursed by the Indemnitor for the reasonable attorneys’ fees and other expenses of contesting, defending, litigating and settling the Third Party Claim which are incurred from time to time, promptly following the presentation to the Indemnitor of itemized bills for such attorneys’ fees and other expenses, subject, however, to any applicable limitations set forth in Section 9.3. The Indemnitor and Indemnitee shall reasonably cooperate with one another in the contest, defense or litigation of any Third Party Claim.
(c) Nuprim Shareholders’ Representative shall represent Nuprim Shareholders in all matters related to Third Party Claims and shall control all decisions to be made by or otherwise concerning Nuprim Shareholders with respect to any Third Party Claims.
Appears in 2 contracts
Sources: Merger Agreement (Motif Bio PLC), Merger Agreement (Motif Bio PLC)
Third Party Claims. Each Notice (a) In the event that an Indemnified Party becomes aware of Claim given by Acquiror, which involves a third third-party claim (a “Third Third-Party Claim”) that the Indemnified Party reasonably believes may result in a demand against the Escrow Fund or for other indemnification pursuant to this Article VIII, Parent shall promptly notify the Shareholders’ Representative and the Escrow Agent, if the Escrow Fund has not ceased to exist, of such claim (a “Claim Notice”); provided, however, that no delay or failure on the part of an Indemnified Party in delivering any Claim Notice shall be resolved as follows:relieve the Company Equityholders from any liability hereunder except and to the extent the Company Equityholders have been actually prejudiced by such delay or failure.
(ab) IfParent may, at its election, undertake and conduct the defense of such Third-Party Claim (except to the extent such Claim may be controlled by the Shareholders’ Representative pursuant to Section 6.6(a)(ii)) upon written notice of such election to the Shareholders’ Representative within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf delivery of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons . The Shareholders’ Representative shall have the rightbe entitled to participate in, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdetermine or conduct, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Third-Party Claim, (3) unless such Third Party Claim seeks a finding or admission participation would affect any privilege of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies Parent in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Third-Party Claim; provided, the Acquiror Indemnified Persons shall cooperate in all reasonable respectshowever, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons that Parent shall have the right in its reasonable discretion to retain separate counsel of their choosingsettle any such claim; provided, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined further, that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without except with the prior written consent of the Indemnifying Persons, Shareholders’ Representative (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), no settlement of any such Third-Party Claim with third-party claimants shall be determinative of any Losses relating to such matter. Notwithstanding the foregoing, the Shareholders’ Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such documents by the Shareholders’ Representative does not affect any privilege relating to the Indemnified Party.
(c) If Parent does not so elect to undertake and conduct the defense of such Third-Party Claim, the Shareholders’ Representative may undertake the defense of and use all reasonable efforts to defend such claim and shall consult with Parent regarding the strategy for defense of such claim, including with respect to the Shareholders’ Representative choice of legal counsel; provided, however, that the Shareholders’ Representative shall have the right in their reasonable discretion to settle any such claim; provided, further, that except with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), no settlement of any such Third-Party Claim with third-party claimants shall be determinative of any Losses relating to such matter. Notwithstanding the foregoing, in the event that (i) the control of the defense by the Shareholders’ Representative would be inappropriate due to a conflict of interest or because the Indemnified Party has been advised by counsel that in such counsel’s opinion it has claims or defenses that are unavailable to the Company Equityholder which the Shareholders’ Representative is unable or unwilling to assert, (ii) such Third-Party Claim (or the facts or allegations related to such Third-Party Claim) involves criminal allegations or seeks equitable or injunctive relief, or (iii) the Shareholders’ Representative fail at any time to conduct the defense of such proceeding, claim or demand in a reasonably active and diligent manner, then Parent shall have the right to assume the control of such defense. Until the Shareholders’ Representative assumes the defense of any such Third-Party Claim, the Indemnified Party may defend against such Third-Party Claim in any manner the Indemnified Party reasonably deems appropriate at cost and expense of the Company Equityholder if the Company Equityholder are liable for indemnification hereunder. Notwithstanding any other provision of this Article VIII, the Shareholders’ Representative shall not enter into any compromise, settlement agreement or consent decree with respect to any such Third-Party Claim without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned) unless such compromise, settlement agreement or consent decree (x) provides solely for the payment of money in an amount that is less than the amount of the Escrow Amount then remaining in the Escrow Fund, (y) contains a complete and unconditional release by the third party asserting the Third-Party Claim of the Indemnified Party and (z) does -77- not contain any direct or indirect requirements upon or provisions for or impose any obligations on the Indemnified Party.
(d) The Acquiror Indemnified Persons party controlling the defense of a Third-Party Claim (the “Controlling Party”) shall (i) keep the other party (the “Non-Controlling Party”) advised of the status of such claim and the Indemnifying Persons defense thereof (including all material developments and events relating thereto) and shall use commercially reasonable efforts consider in good faith recommendations made by the Non-Controlling Party with respect thereto and (ii) make available to avoid production the Non-Controlling Party any documents or materials in its possession or control that may be necessary to understand the defense of confidential information such claim (consistent with Law), and subject to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable protection of the attorney-client privilege). If requested by the Controlling Party, 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, complaints or workother pleadings 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 reasonably cooperate with and assist the Controlling Party in the defense of such Third-product privilegesParty Claim.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty If any Buyer Indemnitee or Seller Indemnitee (30each referred to as an “Indemnitee”) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a receives notice of election and (y) such notice the assertion by any third party of election includes a written acknowledgment from the Seller Representative on behalf any claim or of the commencement by any such third party of any action (any such claim or action being referred to herein as an “Indemnifiable Claim”) with respect to which Seller Guarantors and or Buyer (each referred to as “Indemnitor”) are or may be obligated to provide indemnification, the Sellers Indemnitee shall promptly notify the Indemnitor in writing (the “Indemnifying PersonsClaim Notice”) of the Indemnifiable Claim; provided, that the Indemnifying Persons would be failure to provide such notice shall not relieve or otherwise affect the obligation of the Indemnitor to provide indemnification hereunder, except to the extent that any Losses directly resulted or were caused by such 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 indemnify acknowledge responsibility and undertake, conduct and control, through counsel of its own choosing, and at its expense, the Acquiror Indemnified Persons for all Damages settlement or defense thereof, and the Indemnitees shall cooperate with the Indemnitors in connection with such Third Party Claim Noticetherewith; provided, the Indemnifying Persons shall have the right, but not the obligation to that (i) take control of the Indemnitor shall permit the Indemnitee to participate in such settlement or defense through counsel chosen by the Indemnitee, provided that the fees and investigation expenses of such Third Party ClaimIndemnitee’s counsel shall not be borne by the Indemnitors, (ii) employ and engage attorneys the Indemnitor shall not settle any Indemnifiable Claim without the Indemnitee’s consent if the settlement (A) requires the Indemnitee to admit wrongdoing, pay any fines or refrain from any action, (B) does not include a full release of their own choice Indemnitee or (subject C) may reasonably be expected to impact the approval ongoing operations of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseBusiness, and (iii) compromise if, in the opinion of counsel to the Indemnitor, either (x) the Indemnitee has separate defenses from the Indemnitor or settle such Third Party Claim(y) there is a conflict of interest between the Indemnitor and Indemnitee or (z) there is any danger of criminal liability of the Indemnitee, which compromise or settlement then the Indemnitee shall be made only with the written consent permitted to retain special counsel of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, own choosing at the expense of the Indemnifying PersonsIndemnitor. The Acquiror Indemnified Persons maySo long as the Indemnitor is vigorously contesting any such Indemnifiable Claim in good faith, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim Indemnitee shall not be adversely affected by assuming the defense of pay or settle such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder claim without the prior written consent of the Indemnifying PersonsIndemnitor’s consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(dc) The Acquiror Indemnified Persons and If the Indemnifying Persons shall use commercially reasonable efforts to avoid production Indemnitor does not notify the Indemnitee within thirty days after receipt of confidential information the Claim Notice (consistent with Lawor 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 cause all communications among employeesundertake the defense of the Indemnifiable Claim described therein, counsel and others representing the Indemnitee shall have the right to contest, settle or compromise the Indemnifiable Claim in the exercise of its reasonable discretion; provided, that the Indemnitee shall notify the Indemnitor of any party to a Third Party Claim to be made so as to preserve compromise or settlement of any applicable attorney-client or work-product privilegessuch Indemnifiable Claim.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given (a) If a claim is made against an Indemnified Person by Acquiror, which involves a third party for which such Indemnified Person is entitled to indemnification under this Article 5 (a “Third Party Claim”), a Claim Certificate shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers Parent in accordance with Section 5.5 (the “Indemnifying Persons”) that Indemnified Person shall also promptly deliver to Parent the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with complaint, claim letter or other document embodying such Third Party Claim Notice(or if asserted orally, a written summary thereof) and, to the Indemnifying Persons shall have the rightextent applicable (and not apparent from such materials), but not the obligation to (i) take control inform Parent of the remedy(ies) sought and the relevant time constraints with respect thereto; it being understood that informing Parent of the date of service thereof — or the lack of such service at such time — shall be deemed to satisfy such time constraint requirement with respect to any matter for which time constraints are related to service) and Parent shall be entitled to participate in the defense and investigation thereof and, if it so chooses (such choice being signified by delivery of written notice to the Indemnified Person within five (5) Business Days of receipt by Parent of notice of such claim, which notice shall include the name of counsel selected to prosecute the defense of such Third Party ClaimClaim (including identifying the principal attorneys in any such firm(s) for such matter)), (ii) employ to assume the defense thereof with counsel selected by Parent and engage attorneys of their own choice (subject reasonably satisfactory to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayedIndemnified Person.
(b) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right Should Parent so elect to assume the defense of a Third Party Claim, Parent shall not be liable to the Indemnified Person for any legal expenses subsequently incurred by the Indemnified Person in connection with the defense thereof; provided, however, that if the Indemnified Person reasonably believes, upon advice of counsel, there exist actual or potential differing interests between Parent and the Indemnified Person related to the Third Party Claim or defense thereof such that representation of both Parent and the Indemnified Person would be inappropriate, then the Indemnified Person may retain counsel of its own choice and Parent shall be liable for the reasonable fees and expenses of such counsel. If Parent assumes such defense, the Indemnified Person shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Party Claim, participate in the defense thereof and to employ counsel, reasonably satisfactory to the Indemnified Person, at its own expense, separate from the counsel employed by ▇▇▇▇▇▇, it being understood that Parent shall control such defense. Parent shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Person for any period during which Parent has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to give notice of the Third Party Claim as provided above).
(c) If Parent chooses to defend or prosecute a Third Party Claim, all the Indemnified Persons shall provide reasonable cooperation in the defense or prosecution thereof (at Parent’s expense). Such reasonable cooperation shall include the retention and (upon Parent’s reasonable request) the provision to Parent of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not Parent assumes the defense of a Third Party Claim, the Indemnified Person shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Parent assumes the defense of a Third Party Claim, the Indemnified Person shall agree to any settlement, compromise or discharge of a Third Party Claim that Parent may recommend and that by its terms obligates Parent to pay the full amount of the liability in connection with such Third Party Claim, that releases the Indemnified Persons completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnified Persons, whether by requiring any admission from or imposing any restriction or other equitable remedy on the Indemnified Persons or otherwise.
(d) Notwithstanding the foregoing, (A) if (1i) Parent does not assume the Indemnifying Persons fail defense of a Third Party Claim with counsel reasonably satisfactory to actively and diligently conduct the Indemnified Person within fifteen (15) days from receipt of notice of such a Third Party Claim by Indemnified Person, (ii) Parent assumes the defense of the Third Party Claim and, in the reasonable opinion of the Indemnified Person, fails to diligently prosecute such defense, and after delivery by the Indemnified Person of ten (after 10) days advance notice and reasonable opportunity to cure)Parent alleging such failure to diligently prosecute, Parent shall not have modified the defense of such Third Party Claim so that it would be reasonably considered to be diligently prosecuting such defense, (2iii) the Acquiror Third Party Claim seeks equitable remedies, (iv) the Indemnified Persons have received advice from counsel Person reasonably believes that an actual or potential conflict exists between the Acquiror Indemnified Persons Third Party Claim could be expected to result in damages that, together with the reasonable costs and the Indemnifying Persons expenses anticipated to be incurred in connection with such defense, settlement or resolution of such Third Party Claim, are materially in excess of the amount for which indemnification may be received by the Indemnified Person hereunder, or (v) the Indemnified Person reasonably believes, after reasonable inquiry of Parent, that Parent lacks sufficient resources to appropriately and diligently prosecute the defense of such Third Party Claim, (3) then the Indemnified Person shall have the right to control the defense or settlement of any such Third Party Claim seeks a finding or admission its reasonable costs and expenses (including reasonable attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be included as part of a violation the indemnification obligation of any criminal Law by an Acquiror Indemnified Person, Parent or (4B) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror if legal counsel for the Indemnified Person reasonably believes that there are or its businessmay be legal defenses available to the Indemnified Person which are different from or additional to those available to Parent, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that Indemnified Person and Parent shall jointly coordinate the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefromthe Indemnified Person’s reasonable costs and expenses (including reasonable attorneys’ fees, including, if appropriate other professionals’ and related to such Third Party Claim, in making any counterclaim against the third party claimant, experts’ fees and court or any cross complaint against any Person, in each case, at the expense arbitration costs) shall be included as part of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense indemnification obligation of such Third Party Claim and any appeal arising therefromParent.
(ce) Notwithstanding anything to If Parent has not assumed the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming or the Indemnified Person is conducting the defense of such Third Party Claim. Notwithstanding anything herein thereof pursuant to the contraryforegoing, whether or not except with the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsParent, which consent shall not be unreasonably withheld, conditioned or delayed.
delayed and which shall be deemed to have been given unless Parent shall have objected within fifteen (d15) The Acquiror days after a written request for such consent by such Indemnified Persons and Person, no settlement or resolution by such Indemnified Person of any claim that gives rise to indemnification by Parent to an Indemnified Person shall be determinative of the Indemnifying Persons existence of or amount of Indemnifiable Damages relating to such matter. In the event that Parent has consented to any such settlement or resolution, Parent shall use commercially reasonable efforts not have any power or authority to avoid production object under Section 5.5, Section 5.6 or any other provision of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything this Article 5 to the contrary in this Agreementamount of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement or resolution, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsincluding via claim against the Escrow Shares.
Appears in 1 contract
Sources: Merger Agreement (Glu Mobile Inc)
Third Party Claims. Each Notice In the event that an Indemnified Party becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which such Indemnified Party reasonably believes may result in an indemnification claim pursuant to this Article VIII, such Indemnified Party shall be resolved as follows:
notify the Shareholder Representative (aor, in the event indemnification is being sought hereunder directly from a Seller, such Seller) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim; provided, (ii) employ and engage attorneys of their own choice (subject however, that the failure to give prompt notice shall not affect the indemnification provided hereunder except to the approval extent the Shareholder Representative, on behalf of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost , has been actually and expensematerially prejudiced as a result of such failure. The Shareholder Representative shall, within ten (10) Business Days of receipt of such notice, notify such Indemnified Party whether the Shareholder Representative desires to undertake and (iii) compromise or settle conduct the defense of such Third Party Claim, which compromise or settlement shall be made only with Claim (provided that the written consent of Acquiror; provided, that such consent will Shareholder Representative may not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim (i) unless the then remaining amount of the Escrow Fund (together with the remaining amounts in the Shareholder Representative Expense Fund) would be sufficient to satisfy all indemnification obligations that could reasonably be expected to become payable in respect of the 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, (1ii) 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 Indemnifying Persons fail litigation or outcome of such Third Party Claim would reasonably be expected to actively 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 of a Third Party Claim, notwithstanding any 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 Third Party Claim (and, for the avoidance of doubt, without regard to any of the limitations provided for in this Article VIII) and diligently conduct the Shareholder Representative shall take all actions necessary or appropriate to defend against the Third Party Claim. Parent or Purchaser may, at its own expense, participate in the defense of any such Third Party Claim assumed by the Shareholder Representative. In the event any Indemnified Party 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 Shareholder Representative, such Indemnified Party or Parties shall be entitled to select separate counsel to act on its behalf and the 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 positions of Parent and the Shareholder Representative, or any of the conditions in clauses (i) through (iv) above is satisfied, then Parent or Purchaser shall have the right to assume the control of the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate Shareholder Representative may not settle any matter (in (but not controlwhole or in part) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsParent or Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed.
delayed (dprovided that Parent or Purchaser may withhold consent to any settlement in its discretion unless such settlement (A) The Acquiror includes a complete and unconditional release of Parent, Purchaser and/or the Indemnified Persons Parties, (B) excludes any injunctive or non-monetary relief applicable to the Indemnified Parties, and the Indemnifying Persons shall use commercially reasonable efforts to avoid production (C) excludes any finding or admission of confidential information (consistent with Lawfault, liability or any violation of law), and which consent shall be deemed to cause all communications among employeeshave been given unless Parent or Purchaser shall have objected within twenty (20) days after a written request for such consent by the Shareholder Representative. If the Shareholder Representative does not elect to defend against such Third Party Claim in accordance with this Section 8.6, counsel then the Shareholder Representative, on behalf of the Sellers, shall be entitled to participate in any defense of such Third Party Claim, at its expense and others representing 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 party 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 made so as deemed Losses hereunder, provided however, that the foregoing shall not impact the ability of the Shareholder Representative to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything object to the contrary 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 AgreementArticle VIII to the amount of any Third Party Claim by Purchaser against the Escrow Fund, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsor 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. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of 8.4.1 If a Third Party Claim if (1) the Indemnifying Persons fail arises that could lead to actively and diligently conduct the defense a breach of the Third Party Claim (after notice and reasonable opportunity to cure)Warranties, (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claimany negotiation, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplierdispute, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken litigation relating thereto with any other then existing claims under this Article 12, would not third party shall be not be fully indemnified hereunder.
(b) handled by the Buyer. In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against order to preserve a right to make a Claim based on a Third Party Claim, the Acquiror Buyer shall, however, and shall procure that the respective Indemnified Persons Person shall, as applicable:
(a) within 30 days after the date the Buyer became aware of the Third Party Claim, give a written notice thereof to the Sellers’ Representative;
(b) not make any admission of liability, settlement, or compromise with any person in relation thereto without obtaining the prior written consent of the Sellers’ Representative, such consent not to be unreasonably condi- tioned, delayed or withheld, and which consent shall cooperate in all reasonable respectsfurther be assumed to have been given should the Sellers’ Representative not respond to the Buyer within twenty (20) Business Days from the Buyer requesting such written consent;
(c) resist, at the Indemnifying Persons’ requestdefend, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of appeal such Third Party Claim taking into due consid- eration the interests of the Sellers, provided that the Indemnified Persons shall not be required to act against their reasonable commercial interest or to take actions that may have a material adverse effect on the Indem- nified Person; and
(d) subject to the relevant Seller/s executing a confidentiality undertaking as the Buyer or the Indemnified Person in question may reasonably require, give the Sellers’ Representative and any appeal arising therefrom, including, if appropriate and related professional advisors nominated by the same reasonable access during normal business hours to such necessary information as the relevant Sellers may reasonably request for the pur- poses of examining the Third Party Claim, in making including to take copies of doc- uments.
8.4.2 If a Seller has made any counterclaim against the third party claimant, or payment to an Indemnified Person as a settlement of any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and the Indemnified Person has the right to recover from any appeal arising therefrom.
(c) Notwithstanding anything to third party any amount payable as a result of facts or circumstances forming the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt basis of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Buyer shall, and shall procure that the respective Indemnified Persons Person shall, at the sole discretion of the Buyer, either assign that right to the relevant Seller/s or, at the direction, cost, and risk of the relevant Seller/s, pursue the said recovery and account to the relevant Seller/s for any funds or property recovered exceeding the amount paid by the relevant Seller/s to the respective Indemnified Person.
8.4.3 The Sellers shall have the right no obligation to retain separate counsel satisfy any Claim in respect of their choosing, defend such any Third Party Claim and have before the sole power matter is subject to direct and control such defense (all at a final settlement or a final, non-ap- pealable decision in arbitration or public court, as applicable.
8.4.4 For the cost and expense avoidance of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense doubt, limitations of such liability set forth in Section 8.2 apply also in respect of any Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Security Sale and Purchase Agreement
Third Party Claims. Each Notice Promptly upon receipt of Claim given by Acquirornotice of any claim, demand or assessment or the commencement of any suit, action or proceeding with respect to which involves a third party indemnity may be sought pursuant to this Section 11, Buyer or the appropriate member of Buyer Indemnified Group shall notify in writing, if possible, within sufficient time to respond to such claim or answer or otherwise plea in such action, the party(ies) from whom indemnification is sought (a “Third Party Claim”individually or collectively, as applicable, the "Seller Group-Indemnitor"). In case any claim, demand or assessment shall be resolved as follows:
(a) Ifasserted, within thirty (30) days after a Notice or suit, action or proceeding is commenced against any member of Claim is delivered to Buyer Indemnified Group, the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would Group-Indemnitor shall be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the sameentitled, at the Indemnifying Persons’ sole cost and Seller Group-Indemnitor's expense, and (iii) compromise to participate therein, and, to the extent that it or settle such Third Party Claimthey may desire, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense defense, conduct or settlement thereof, at its or their own expense, with counsel satisfactory to Buyer (whose consent to the selection of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to curecounsel shall not be unreasonably withheld or delayed), (2) provided that the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons Seller Group-Indemnitor confirms to Buyer and the Indemnifying Persons in connection with the defense member of such Third Party ClaimBuyer Indemnified Group, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, within five (5) such Third Party Claim relates days of receiving notice from the member of Buyer Indemnified Group, that it is a claim to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely which the rights of indemnification apply with respect to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror applicable member of Buyer Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying PersonsGroup. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons Seller Group-Indemnitor shall have the right to retain separate counsel of their choosingsettle or compromise monetary claims; however, defend such Third Party Claim and have the sole power as to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claimany other claim, the Acquiror Indemnified Persons Seller Group-Indemnitor shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without first obtain the prior written consent from the member of the Indemnifying PersonsBuyer 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 assume the defense, conduct, settlement or compromise of such action, the Seller Group-Indemnitor shall not be unreasonably withheldliable to the member of Buyer Indemnified Group for any legal or other expenses (including, conditioned without limitation, settlement costs) subsequently incurred by the member of Buyer Indemnified Group in connection with the defense, conduct or delayed.
(d) 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 Acquiror Indemnified Persons Seller Group-Indemnitor shall keep Buyer and the Indemnifying Persons applicable member of Buyer Indemnified Group apprised of the status of the suit, action or proceeding and shall use commercially reasonable efforts make the Seller Group- Indemnitor's counsel available to avoid production Buyer and the member of confidential Buyer Indemnified Group, at 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 (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything relevant to the contrary claim available to the Seller Group-Indemnitor to the extent that such personnel, books and records and other information are in this Agreementthe 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, Section 8.1(d) then the member of Buyer Indemnified Group shall exclusively govern S Corporation Tax Proceedingsbe entitled, at the Seller Group-Indemnitor's expense, to defend, conduct, settle or compromise such matter with counsel selected by the member of Buyer Indemnified Group.
Appears in 1 contract
Sources: Bill of Sale and Asset Purchase Agreement (Park Pharmacy Corp)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfThe Buyer shall not (and shall ensure that neither the Buyer Designees nor any Target Group Company shall) make any admission of liability, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election settlement or compromise and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf shall notify General Motors of the Seller Guarantors and Third Party Claim within 25 Business Days following the Sellers (Buyer, the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with Buyer Designees or any Target Group Company becoming aware of such Third Party Claim Notice(such period shall be reduced to 10 Business Days, insofar as reasonably possible and if the Indemnifying Persons shall have the right, but not the obligation to (i) take control urgency of the defense matter dictates a swifter notification of General Motors) (the “Buyer Notice”); provided that the failure of the Buyer to deliver any Buyer Notice to General Motors within such period shall only relieve General Motors and investigation the relevant Seller of its indemnity obligations hereunder to the extent that it is prejudiced by such failure and up to the amounts incurred by such failure. The Buyer Notice shall constitute a Claim and shall include all of the information set out at Section 14.2.
(b) Within 30 Business Days following the Buyer Notice having been received by General Motors, General Motors shall inform the Buyer whether it wishes to conduct the defense, negotiation and settlement of such Third Party ClaimClaim on its own and at its own expense; if General Motors so opts to take exclusive control of such defense, (ii) employ it shall be deemed to have accepted to indemnify the Buyer in accordance with and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not limitations set forth in this Agreement with respect to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim; it being provided however that if General Motors becomes aware, after having taken the decision to take exclusive control of such defense, of new or previously unknown facts or circumstances (or changes thereto) which compromise or settlement would provide a defense to the claim for indemnity under this Article 14, General Motors shall be made only with entitled to assert such defense. In the written consent of Acquiror; providedevent General Motors opts to take exclusive control, that such consent will (i) General Motors shall not be required if such settlement includes an unconditional release take any action against the interest (intérêt social) of the Acquiror Indemnified Persons Buyer (or a Buyer Designee) or the Target Group Companies and provides solely for payment shall take into account the reasonable recommendations of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding Buyer as to the foregoing, conduct of the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if and (1ii) the Indemnifying Persons fail Buyer or the relevant Target Group Company may participate in any such proceedings with counsel of its choice and at its own expense (provided that nothing herein shall allow Buyer to actively and diligently participate in proceedings relating to, or obtain information with respect to, other affairs of the Sellers Retained Group Companies). Should the Buyer or the relevant Target Group Company decide to participate in such proceedings, General Motors shall consult with the Buyer or the relevant Target Group Company about any strategic decision made in connection with the proceedings undertaken for the purpose of defending the interests of the Buyer or such Target Group Company. General Motors shall be entitled to enter into any settlement of any Third Party Claims that General Motors elects to defend pursuant to this Section 14.4, provided that General Motors has received the Buyer’s prior written consent (not be unreasonably conditioned, withheld or delayed).
(c) If General Motors notifies the Buyer of its intention to conduct the defense of the Third Party Claim Claim, General Motors shall retain counsel at its own expense to defend the interests 115
(after notice and reasonable opportunity d) If General Motors notifies the Buyer of its intention not to cure)conduct the defense of the Third Party Claim, or if it fails to reply to the Buyer Notice within the time limit set out in paragraph (2b) above, the Acquiror Indemnified Persons have received advice from counsel that an actual Buyer or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with Target Group Company involved shall conduct the defense of such Third Party ClaimClaim on its own. In such a case, the Buyer or the Target Group Company involved shall diligently defend the interests of the Buyer or the Target Group Company involved. However, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not controli) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim Buyer shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether enter into any settlement or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder withdraw from proceedings without having obtained the prior written consent of the Indemnifying Persons, which consent shall General Motors (not to be unreasonably withheldconditioned, conditioned withheld or delayed.
) and (dii) The Acquiror Indemnified Persons and the Indemnifying Persons Buyer shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law)consult, and shall cause the Target Group Company involved to cause all communications among employeesconsult, counsel and others representing with General Motors about any party to a Third Party Claim to be strategic decision made so as to preserve any applicable attorney-client in connection with the proceedings undertaken for the purpose of defending the interests of the Buyer or work-product privilegessuch Target Group Company.
(e) Notwithstanding anything in this Agreement to the contrary contrary, the Buyer shall or shall cause the relevant Target Group Company to give reasonable access to General Motors to such information and access to personnel, premises, documents and records as General Motors may reasonably request, during regular business hours, upon reasonable advance notice, in this Agreementconnection with any Third Party Claim relating to product liability claims or product warranty claims.
(f) For the avoidance of doubt, any Claim for Indemnified Taxes which does not relate to an audit or a reassessment by the Tax Authorities, other Governmental Authorities or other Third Parties shall not be considered as a Third Party Claim and shall be dealt with by the provisions of Section 8.1(d14.2. 14.5 Effective Nature of the Loss or Indemnified Tax (a) A Loss or an Indemnified Tax shall exclusively govern S Corporation be eligible for indemnification by General Motors to the extent such Loss or an Indemnified Tax Proceedingshas effectively been sustained by the Buyer, any Buyer Designee, the Target Group Companies or the Controlled Dealership Entities. For the avoidance of doubt, an Indemnified Tax that constitutes VAT (or an amount in respect of VAT) that is attributable to the activities of a Retained UK VAT Group Company shall not effectively have been sustained by the Buyer, any Buyer Designee or any of the Target Group Companies to the extent that (i) it has been included in the calculation of a net payment under Section 8.3(e) or (f), or (ii) it is output tax in circumstances where a Target Group Company has received and retained, or would in the ordinary course of its business (as carried on at Closing) expect to receive and retain, the consideration for the supply to which the output tax relates.
Appears in 1 contract
Sources: Master Agreement
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a1) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have The Indemnitor has the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject by notice to the approval of Acquiror, such approval applicable Indemnitees Representative given not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within later than thirty (30) days after receipt of the Indemnification Notice, to assume control of the defence, compromise or settlement of the Third Party Claim Notice its obligation to indemnify provided that:
(a) the Acquiror Indemnified Persons against any Damages arising from such Third Party ClaimClaim involves only money damages and does not seek any injunctive or other equitable relief;
(b) if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, then representation by the Acquiror Indemnified Persons shall have same counsel would, in the right judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences);
(c) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnitee, likely to retain separate counsel establish a precedent, custom or practice adverse to the continuing business interest of their choosingthe Indemnitee; and
(d) the Indemnitor, from time to time, at the request of the Indemnitees Representative, provides reasonable assurance to the Indemnitees Representative of its financial capacity to defend such that Third Party Claim and have to provide indemnification in respect thereof.
(2) On the sole power assumption of control by the Indemnitor, it is conclusively established for purposes of this Agreement that the Third Party Claim is within the scope of, and is subject to, the indemnification pursuant to direct this Article 9, and:
(a) the Indemnitor will actively and control such defense (all diligently proceed with the defence, compromise or settlement of the Third Party Claim at the Indemnitor’s sole cost and expense, including the retaining of counsel reasonably satisfactory to the Indemnitees Representative;
(b) the Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, compromise or settlement of the Third Party Claim (including supplying copies of all relevant documents promptly as they become available) and will arrange for its counsel to inform the Indemnitees Representative on a regular basis of the status of the Third Party Claim;
(c) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim (provided the Indemnitor shall continue to control that defence); and
(d) the Indemnitor will not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein consent to the contrary, whether entry of any judgment or not enter into any settlement with respect to the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) Provided all the conditions set forth in Section 9.6(1) are satisfied and the Indemnitor is not in breach of any of its obligations under Section 9.6(2), each of the Indemnitee and its Indemnitees Representative will, at the expense of the Indemnitor, co-operate with the Indemnitor and use its reasonable commercial efforts to make available to the Indemnitor all relevant information in its possession or under its control (provided that it does not cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, in the reasonable opinion of counsel for which they seeks indemnification hereunder the Indemnitor, necessary to enable the Indemnitor to conduct that defence, provided always that:
(a) no admission of fault may be made by or on behalf of Purchaser or any Purchaser Indemnitee without the prior written consent of Purchaser;
(b) no admission of fault may be made by or on behalf of Vendor or any Vendor Indemnitee without the Indemnifying Personsprior written consent of Vendor; and
(c) the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee’s legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) If (a) the Indemnitor does not give the relevant Indemnitees Representative the notice provided in Section 9.6(1), any of the conditions in Section 9.6(1) are unsatisfied, or (b) the Indemnitor breaches any of its obligations under Sections 9.6(2) or 9.6(3), the applicable Indemnitees Representative may assume control of the defence, compromise or settlement of the Third Party Claim as in its sole discretion may appear advisable, and is entitled to retain counsel as in its sole discretion may appear advisable, the whole at the Indemnitor’s sole cost and expense. Any settlement or other final determination of the Third Party Claim will be binding on the Indemnitor. The Acquiror Indemnified Persons Indemnitor will, at its sole cost and expense, cooperate fully with the Indemnifying Persons shall Indemnitee and its Indemnitees Representative and use commercially its reasonable commercial efforts to avoid production make available to the Indemnitee and its Indemnitees Representative all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of confidential information counsel for the Indemnitee, necessary to enable the Indemnitee to conduct the defence. The Indemnitor will reimburse the Indemnitee and its Indemnitees Representative promptly and periodically for the costs of defending against the Third Party Claim (consistent with Lawincluding legal fees and expenses), and will remain responsible for any Losses the Indemnitee and its Indemnitees Representative may suffer resulting from, arising out of or relating to cause all communications among employees, counsel and others representing any party to a the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary fullest extent provided in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle 9.
Appears in 1 contract
Sources: Share and Unit Purchase Agreement (Kinder Morgan Canada LTD)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to In the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf event of the assertion or commencement by any person of any claim or proceeding (whether against any Buyer Indemnified Person, Seller Guarantors and the Sellers (the “Indemnified Person, or any other Person) with respect to which an Indemnifying Persons”) that the Indemnifying Persons would be required Party may become obligated to indemnify the Acquiror indemnify, hold harmless, compensate or reimburse any Buyer Indemnified Persons for all Damages in connection with such Third Party Claim NoticePerson or Seller Indemnified Person pursuant to this section, the Indemnifying Persons Buyer Indemnified Person or Seller Indemnified Person shall have the right, but not the obligation at its election, to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection proceed with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding claim or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror proceeding on its own with counsel reasonably satisfactory to the Indemnifying Party. If the Buyer Indemnified Person or its business, (5) Seller Indemnified Person so proceeds with the defense of any such Third Party Claim relates to a Material Customer claim or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.proceeding:
(bi) In subject to the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claimother provisions of this section, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at expenses relating to the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim claim or proceeding shall be borne and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of paid exclusively by the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in Party;
(but not controlii) the investigation, trial Indemnifying Party shall make available to the Buyer Indemnified Person or Seller Indemnified Person any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim and any appeal arising therefrom.claim or proceeding;
(ciii) Notwithstanding anything to the contrary herein, if Buyer Indemnified Person or Seller Indemnified Person shall keep the Indemnifying Persons do not assume Party informed of all material developments and events relating to such defense and investigation claim or does not acknowledge in writing within thirty proceeding; and
(30iv) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Buyer Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Person or Seller Indemnified Persons Person shall have the right to retain separate counsel of their choosingsettle, defend adjust or compromise such Third Party Claim and have claim or proceeding; provided, that if the sole power to direct and control Buyer Indemnified Person or Seller Indemnified Person settles, adjusts or compromises any such defense (all at claim or proceeding without the cost and expense consent of the Indemnifying Persons if it is ultimately determined that Party, such settlement, adjustment or compromise shall be conclusive evidence of the Acquiror amount of Damages incurred by the Buyer Indemnified Persons are entitled to indemnification hereunder); Person or Seller Indemnified Person in connection with such claim or proceeding (it being understood that if the Acquiror Buyer Indemnified Persons’ right Person or Seller Indemnified Person requests that the indemnifying party consents to indemnification for a Third settlement, adjustment or compromise, the Indemnifying Party Claim shall not be adversely affected by assuming the defense of unreasonably withhold or delay such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedconsent).
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Velti PLC)
Third Party Claims. Each Notice In the event of Claim given the assertion or commencement by Acquirorany third party of any claim or Proceeding (whether against the Surviving Corporation, against Acquiror or against any other Person) with respect to which involves any of the Company Securityholders may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnified Person pursuant to this Article VIII, the Indemnified Person shall give written notice thereof to the Securityholders’ Representative Committee, and thereafter shall keep the Securityholders’ Representative Committee and the party, or parties, from which indemnification is sought (the “Indemnitor”) reasonably informed with respect thereto; provided, however, that failure of the Indemnified Person to give the Securityholders’ Representative Committee and Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent (and only to the extent) that such failure materially prejudices the Indemnitor’s ability to defend such claim against a third party (a “Third Party Claim”), shall be resolved as follows:
(a) Ifparty. The Indemnitor may, within thirty ten (3010) days after a Notice of Claim is delivered receiving the notice from Indemnified Person as set forth herein, give written notice to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) Indemnified Person stating that the Indemnifying Persons would Indemnitor agrees to be required to indemnify the Acquiror Indemnified Persons liable for all Damages of the Indemnified Person in connection with such Third Party Claim third party claim and intends to defend against such claim at the Indemnitor’s own cost and expense (the “Defense Notice”). If an Indemnitor properly and timely delivers a Defense Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of counsel for the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice shall be selected by the Indemnitor (subject to the approval consent of Acquiror, such approval Indemnified Person which consent shall not to be unreasonably withheld, conditioned withheld or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement Indemnitor shall be made only with the written consent of Acquirorentitled to assume such defense; provided, however, that such consent will not be required if such settlement includes an unconditional release from and after the delivery of the Acquiror notice of a claim by Indemnified Persons Person and provides solely for payment until such time as the Indemnitor delivers a Defense Notice, the Indemnified Person may take such actions related to the defense of monetary damages for which such claim as are reasonably necessary and appropriate to defend such claim, and any such actions shall be at the Acquiror Indemnified Persons will be indemnified in fullIndemnitor’s expense. Notwithstanding the foregoing, the Indemnifying Persons Indemnitor shall not have the right to assume or continue the defense of a Third Party Claim any Proceeding if (1i) the Indemnifying Persons fail Indemnified Person 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 Indemnified Person, counsel for the Indemnitor CONFIDENTIAL TREATMENT REQUESTED could not adequately represent the interests of the Indemnified Person because such interests could be in conflict with those of the Indemnitor, (ii) such Proceeding is reasonably likely to cause a material and adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnitor, (iii) the Indemnitor shall not have assumed the defense of the Proceeding in a timely fashion (but in any event at least 5 days prior to the deadline for the filing of any necessary filings or pleadings), or shall at any point cease to actively and diligently conduct the defense of the Third Party Claim Proceeding or (after notice and reasonable opportunity to cure), (2iv) the Acquiror Indemnified Persons have received advice from counsel third party claim that an actual is the subject of the Proceeding relates to, or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons otherwise arises in connection with with, Taxes or any criminal or regulatory enforcement action. If the Indemnitor shall assume the defense of any Proceeding, the Indemnified Person shall be entitled to participate in any Proceeding at its expense, and the Indemnitor shall not settle such Third Party Claim, (3) such Third Party Claim seeks a finding Proceeding unless the settlement shall include as an unconditional term thereof the giving by the claimant or admission the plaintiff of a violation full and unconditional release of any criminal Law by an Acquiror the Indemnified Person, (4) from all liability with respect to the matters that are subject to such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material SupplierProceeding, or (6) such Third Party Claim is otherwise shall have been approved reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) by the Indemnified Person. In the event that the Indemnifying Persons defend Indemnitor does not elect to, or is not permitted to assume sole control over the Acquiror defense of a Proceeding pursuant to this Section 8.6, and the Indemnified Persons against a Third Party ClaimPerson proceeds with the defense of any such claim or Proceeding, the Acquiror Indemnified Persons shall cooperate in (i) all reasonable respects, at expenses relating to the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim claim or Proceeding shall be borne and paid exclusively by the Indemnitor, (ii) each Company Securityholder shall make available to the Indemnified Person any appeal arising therefrom, including, if appropriate documents and related materials in his possession or control that may be necessary to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim claim or Proceeding, and any appeal arising therefrom.
(ciii) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons Person shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, adjust or compromise such claim or pay such Third Party Claim for which they seeks indemnification hereunder without Legal Proceeding with the prior written consent of the Indemnifying PersonsSecurityholders’ Representative Committee; provided, which however, that such consent shall not be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given not later than 30 days after receipt of the Indemnification Notice, to assume control of the defence, compromise or settlement of the Third Party Claim given provided that: the Third Party Claim involves only money damages and does not seek any injunctive or other equitable relief; if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by Acquirorthe same counsel would, in the judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences); settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnitee, likely to establish a precedent, custom or practice adverse to the continuing business interest of the Indemnitee; and the Indemnitor, from time to time, at the request of the Indemnitees Representative, gives security satisfactory to the Indemnitees Representative against any costs and other liabilities to which involves the Indemnitee may be or become exposed as a third party (a “result of that Third Party Claim”), shall be resolved as follows:.
(a2) IfOn the assumption of control by the Indemnitor, within thirty (30) days after a Notice it is conclusively established for purposes of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) this Agreement that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeis within the scope of, and is subject to, the Indemnifying Persons shall have indemnification pursuant to this Article 7, and: the rightIndemnitor will actively and diligently proceed with the defence, but not the obligation to (i) take control compromise or settlement of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, Claim at the Indemnifying Persons’ Indemnitor’s sole cost and expense, and (iii) compromise or settle such Third Party Claimincluding the retaining of counsel reasonably satisfactory to the Indemnitees Representative; the Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim; the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 7.6(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 7.6(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitees Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything use its best efforts to make available to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation Indemnitor all relevant information in its possession or under its control (provided that it does not acknowledge cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, in writing within thirty (30) days after receipt the reasonable opinion of counsel for the Indemnitor, necessary to enable the Indemnitor to conduct that defence, provided always that: no admission of fault may be made by or on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser; no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent of the Vendor; and the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee’s legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) The Acquiror Indemnified Persons and If (i) the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with LawIndemnitor does not give the relevant Indemnitees Representative the notice provided in Section 7.6(1), and to cause all communications among employees(ii) any of the conditions in Section 7.6(1) are unsatisfied, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.or
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Claims. Each Notice 10.1 If the Company or the Purchaser or any member of Claim given the Purchaser’s Group receives notice of a claim by Acquiror, which involves a third party against the Company or the Purchaser or any member of the Purchaser’s Group (a “Third Party Claim”), shall be resolved as follows) which might give rise to a Warranty Claim or a claim under the indemnities in Clause 8 of this Agreement:
(a) If, within thirty (30) days after a Notice of Claim is delivered to at the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf request of the Seller Guarantors Warrantors, the Warrantors and the Sellers (Purchaser shall consult with each other regarding the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and the Purchaser shall and shall procure that the relevant member of the Purchaser’s Group shall take such lawful and reasonable opportunity action as the Warrantors shall reasonably require to cure)avoid, (2) dispute, resist, appeal, compromise, settle, contest or raise a counterclaim in relation to the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim;
(b) the Warrantors shall indemnify the Company, (3) such Third Party Claim seeks a finding the Purchaser and/or the relevant member of the Purchaser’s Group in respect of all reasonable costs, charges, expenses, liabilities, and damages incurred for which the Company, the Purchaser or admission the relevant member of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies the Purchaser’s Group becomes liable in respect of an Acquiror Indemnified Person action or its businessomission which is requested to be taken by the Company, the Purchaser or any member of the Purchaser’s Group under paragraph 10.1(a) above; and
(5c) such at the written request of the Warrantors and upon reasonable notice, the Purchaser shall inform the Warrantors of the progress and defence of any Third Party Claim relates and shall consult with and have due regard for the Sellers’ reasonable representations in connection therewith.
10.2 Nothing in paragraph 10.1 shall require the Company, the Purchaser or any member of the Purchaser’s Group to a Material Customer take or Material Supplierrefrain from taking any action which it reasonably considers is likely to:
(a) affect the goodwill, business or (6) such Third Party Claim is reasonably likely to result in Damages thatbona fide commercial interests of the Company, taken with the Purchaser and/or any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.member of the Purchaser’s Group;
(b) In render any policy of insurance maintained by or available to the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party ClaimCompany, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense Purchaser and/or relevant member of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate Purchaser’s Group void or voidable or entitle the relevant insurer to repudiate or rescind any such policy in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.part or in whole; or
(c) Notwithstanding anything give rise to a criminal action or proceeding brought against the contrary hereinCompany, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt Purchaser and/or relevant member of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser’s Group or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingdirector, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether officers or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedemployees.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror(i) If any third party shall notify Peregrine or another Buyer or its Affiliates with respect to any matter (hereinafter referred to as a "THIRD PARTY CLAIM"), which involves may result in Losses, then Peregrine or such other Buyer shall give notice to the Partners as soon as reasonably practicable, but in any event within thirty (30) days, of its becoming aware of any such Third Party Claim or of facts upon which any such Third Party Claim will be based setting forth such material information with respect to the Third Party Claim as is reasonably available to Peregrine or such other Buyer; PROVIDED, HOWEVER, that no delay or failure on the part of Peregrine or another Buyer in notifying the Partners shall relieve the Partners from any obligation hereunder unless the Partners are thereby materially prejudiced (and then solely to the extent of such prejudice). The Partners shall not be liable for any attorneys' fees and expenses or other costs of investigation or defense incurred by Peregrine or another Buyer prior to its giving notice to the Partners of a third party (a “Third Party Claim”), shall be resolved as follows:.
(aii) IfIn case any Third Party Claim is asserted against Peregrine, any other Buyer or their Affiliates, and Peregrine or such Buyer notifies the Partners thereof pursuant to Section 11(e)(i) above, the Partners will be entitled, if they so elect by written notice delivered to Peregrine or such Buyer within thirty (30) days after a Notice of Claim is delivered to the Seller Representativereceiving Buyer's notice, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense thereof, at the expense of a the Partners, so long as:
(a) the Third Party Claim if involves only money damages and does not seek an injunction or other equitable relief that would reasonably impair Peregrine's ability to conduct its business, including, without limitation, its ability to market, sell, or distribute the Software acquired pursuant to this Agreement;
(1b) settlement of, or an adverse judgment with respect to, the Indemnifying Persons fail Third Party Claim is not, in the good faith judgment of Buyer, likely to actively and diligently establish a precedential custom or practice adverse to the continuing business interests of Buyer which could have a material adverse effect on the business or operations of Buyer; and
(c) counsel selected by the Partners is reasonably acceptable to Buyer. If the Partners so assume any such defense, they shall conduct the defense of the Third Party Claim (after notice actively and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual diligently. The Partners shall not compromise or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) settle such Third Party Claim seeks a finding or admission of a violation consent to entry of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies judgment in respect thereof without the prior written consent of an Acquiror Indemnified Person or its businessPeregrine, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would which consent shall not be not be fully indemnified hereunderreasonably withheld.
(biii) In the event that the Indemnifying Persons defend Partners assume the Acquiror Indemnified Persons against a defense of the Third Party Claim in accordance with Section 10.2(e)(ii) above, Buyer or its Affiliates may retain separate counsel and participate in the defense of the Third Party Claim, but the Acquiror Indemnified Persons fees and expenses of such counsel shall cooperate in all reasonable respects, be at the Indemnifying Persons’ requestexpense of Buyer unless Buyer or its Affiliates, based on the written advice of outside counsel, shall reasonably determine that there is a material conflict of interest between or among Buyer or its Affiliates and the Partners with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related respect to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Personwhich would prohibit joint representation under applicable standards of legal ethics, in each case, at which case the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost reasonable fees and expense, monitor and further participate in (but not control) the investigation, trial and defense expenses of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything counsel will be borne by the Partners. Buyer or its Affiliates will not consent to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation entry of any judgment or does not acknowledge in writing within thirty (30) days after receipt of enter into any settlement with respect to the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsPartners, which consent shall not be unreasonably withheld. Buyer will cooperate in the defense of the Third Party Claim and will provide full access to documents, conditioned or delayedassets, properties, books and records reasonably requested by the Partners and material to the claim and will make available, to the extent within their control, all officers, directors and employees reasonably requested by the Partners for investigation, depositions and trial.
(div) The Acquiror Indemnified Persons and In the Indemnifying Persons shall use commercially reasonable efforts event that (i) the Partners fail or elect not to avoid production assume the defense of confidential information Buyer or its Affiliates against such Third Party Claim, which the Partners had the right to assume under Section 10.2(e)(ii) above, or (consistent with Law), and ii) the Partners are not entitled to cause all communications among employees, counsel and others representing any party to a assume the defense of Buyer or its Affiliates against such Third Party Claim pursuant to Section 10.2(e)(ii) above, Buyer or its Affiliates shall have the right to undertake the defense and, with the prior written consent of the Partners, which shall not be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything unreasonably withheld, consent to the contrary entry of any judgment or enter into any settlement with respect to the Third Party Claim in this Agreementany manner it may deem appropriate, Section 8.1(d) which judgement or settlement effected pursuant to such consent shall exclusively govern S Corporation Tax Proceedingsbe determinative of the validity of any claim of Loss hereunder. In each case, Buyer or its Affiliates shall conduct the defense of the Third Party Claim actively and diligently, and the Partners will cooperate with Buyer or its Affiliates in the defense of that claim and will provide full access to documents, assets, properties, books and records reasonably requested by Buyer and material to the claim and will make available all individuals reasonably requested by Buyer for investigation, depositions and trial.
Appears in 1 contract
Third Party Claims. Each Notice (i) In the event any Buyer Indemnitee becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which Buyer Indemnitee reasonably believes may result in a demand for indemnification pursuant to this Article 6, Buyer Indemnitee shall be resolved as follows:
(a) Ifnotify the Sellers’ Representative of such claim, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (Sellers’ Representative shall have the “Indemnifying Persons”) that right to defend against the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to provided that (i) take control the Sellers’ Representative notifies Buyer Indemnitee in writing within 15 days after Buyer Indemnitee has given notice of the defense Third Party Claim that Indemnifying Parties will indemnify Buyer Indemnitee from and investigation against the entirety of such any Losses the Buyer Indemnitee may suffer resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim, (ii) employ the Third Party Claim involves only money damages and engage attorneys does not seek an injunction or other equitable relief, (iii) such Third Party Claim could not reasonably result in criminal liability of their own choice any Buyer Indemnitee, (subject iv) such Third Party Claim does not involve or relate to an action by a Governmental Authority or a customer of the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseCompany, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1v) the Indemnifying Persons fail to actively and diligently conduct Sellers’ Representative conducts the defense of the Third Party Claim actively and diligently.
(after notice and reasonable opportunity to cureii) So long as the Sellers’ Representative is conducting the defense of the Third Party Claim in accordance with Section 6.4(b)(i), the Sellers’ Representative will (2A) keep Buyer Indemnitee apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit Buyer Indemnitee to participate in the defense of the Third Party Claim, (B) the Acquiror Indemnified Persons Sellers will not be responsible for any attorney’s fees or other expenses incurred by the Buyer Indemnitee regarding the Third Party Claim, and (C) the Sellers’ Representative shall have received advice from counsel the right to settle such Third Party Claim provided the settlement involves only money damages and does not include an injunction or other equitable relief.
(iii) If Buyer Indemnitee conducts the defense of any such claim, whether by reason that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with Sellers’ Representative chooses not to conduct the defense of such Third Party ClaimClaim or by reason that the Sellers’ Representative fails to qualify to conduct such defense in accordance with Section 6.4(b)(i), (3) Buyer Indemnitee shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim; provided, however, that, except with the consent of the Sellers’ Representative, no settlement of any such Third Party Claim seeks a finding or admission with third party claimants shall be determinative of a violation the amount of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect Losses Buyer Indemnitee is entitled to recover pursuant to the indemnification provisions of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) 6 relating to such matter. In the event that the Indemnifying Persons defend Sellers’ Representative has consented to any such settlement, no Seller shall have any power or authority to object under any provision of this Article 6 to the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, amount of any claim by Buyer Indemnitee pursuant to Section 6.2 with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related respect to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefromsettlement.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eco Science Solutions, Inc.)
Third Party Claims. Each Notice Except with respect to a Tax Liability Issue, ------------------- if any legal proceedings are instituted or any claim is asserted by any third party with respect to which any of Claim given by AcquirorSeller Indemnified Parties on the one hand, or any of Buyer Indemnified Parties on the other hand, may be entitled to indemnity hereunder, the party asserting such right to indemnity (the "Indemnitee") will promptly give the party from whom indemnity is sought (the ---------- "Indemnitor") written notice thereof. A delay in giving such notice will only ---------- relieve the recipient thereof of liability to the extent the recipient suffers actual prejudice because of the delay. The Indemnitor will have the right, at its option and expense, to participate in the defense of such a proceeding or claim, but not to control the defense, negotiation or settlement thereof, which control will at all times rest with the Indemnitee, unless the proceeding or claim involves a third party (a “Third Party Claim”)only money damages, shall be resolved as followsand the Indemnitor:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election irrevocably acknowledges in writing complete responsibility for and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required agrees to indemnify the Acquiror Indemnified Persons for all Damages Indemnitee; and
(b) furnishes evidence satisfactory to the Indemnitee of the financial ability to so indemnify, in connection with which case the Indemnitor may assume such Third Party Claim Noticecontrol through counsel of its choice, who shall be reasonably satisfactory to the Indemnifying Persons shall have the rightIndemnitee, and at Indemnitor's expense, but not the obligation Indemnitee will continue to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense be represented, at its own expense, by counsel of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons its choice in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding proceeding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In claim. If the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do Indemnitor does not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt control of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein a proceeding or claim, the entire defense of the proceeding or claim by the Indemnitee, any settlement made by the Indemnitee, and any judgment entered in the proceeding or claim will be deemed to have been consented to by, and will be binding on, the Indemnitor as fully as though it alone had assumed the defense thereof and a judgment had been entered in the proceeding or claim in the amount of such settlement or judgment, except that the right of the Indemnitor to contest the right of Indemnitee to indemnification under this Agreement with respect to the contrary, whether proceeding or claim will not be extinguished. If the Indemnifying Persons shall have assumed Indemnitor does assume control of the defense of such Third Party Claima proceeding or claim, the Acquiror Indemnified Persons shall not settleIndemnitor will have the exclusive right to settle the claim; provided, compromise or pay such Third Party Claim for which they seeks indemnification hereunder that, it will not, without the prior written consent --------- of the Indemnifying PersonsIndemnitee, settle the proceeding or claim or consent to entry of any judgment relating thereto which consent shall does not be unreasonably withheldinclude as an unconditional term thereof the giving by the claimant to the Indemnitee a release from all liability in respect of the proceeding or claim. The parties hereto agree to cooperate fully with each other in connection with the defense, conditioned negotiation or delayed.
(d) The Acquiror Indemnified Persons settlement of any such proceeding or claim, including providing reasonable access to all applicable books and records and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law)officers, employees and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything agents that are reasonably necessary to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsdefense.
Appears in 1 contract
Sources: Stock Purchase Agreement (Safeguard Health Enterprises Inc)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a (A) If any third party notifies Parent or Surviving Corporation with respect to any third party claim (a “Third Party Claim”)"THIRD PARTY CLAIM") that may give rise to a Loss, shall be resolved as follows:then Parent will promptly notify in writing the Shareholder Representative appointed pursuant to Section 8.8; provided, however, that no delay on the part of Parent in notifying the Shareholder Representative will relieve the Participating Shareholders from any obligation hereunder unless (and then solely to the extent) the Shareholders are prejudiced by such delay.
(aB) IfThe Participating Shareholder, within thirty (30) days after a Notice of Claim is delivered to through the Seller Shareholder Representative, (x) will have the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from right to defend Parent against the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticewith counsel selected by the Shareholder Representative and reasonably satisfactory to Parent, the Indemnifying Persons shall have the right, but not the obligation to so long as: (i) take control the Shareholder Representative so notifies Parent in writing within 15 days of the defense and investigation of such Third Party ClaimClaim becoming known to the Participating Shareholders, acknowledging that such claim is in respect of a Loss described in Section 8.1; (ii) employ the Third Party Claim involves only money damages and engage attorneys of their own choice (subject to the approval of Acquiror, such approval does not to be unreasonably withheld, conditioned seek an injunction or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, other equitable relief; and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently Participating Shareholders conduct the defense of the Third Party Claim (after notice actively and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunderdiligently.
(bC) In So long as the event that Participating Shareholders are conducting the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice in accordance with Section 8.2(b), (i) Parent may retain separate co-counsel at its obligation to indemnify sole cost and expense and participate in the Acquiror Indemnified Persons against any Damages arising from such defense of the Third Party Claim, then ; (ii) Parent will not consent to the Acquiror Indemnified Persons shall have entry of any judgment or enter into any settlement with respect to the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsShareholder Representative (which consent will not be withheld unreasonably); and (iii) the Participating Shareholders 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 Parent (which consent will not be withheld unreasonably).
(D) In the event that any of the conditions in Section 8.2(b) is or becomes unsatisfied, (i) Parent may defend against the Third Party Claim in any manner it reasonably may deem appropriate; provided, however, that Parent will not consent to the entry of any judgment or enter into any settlement or agreement to settle a Third Party Claim without the prior written consent of the Shareholder Representative, which consent shall will not be unreasonably withheld; (ii) Parent will be reimbursed by Participating Shareholders, conditioned or delayed.
Parent may deduct such amounts from the Primary Escrow, promptly and periodically for the costs of defending against the Third Party Claim (dincluding reasonable attorneys' fees and expenses); and (iii) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law)Participating Shareholders will remain responsible for any Loss that Parent actually suffers resulting from, and to cause all communications among employeesarising out of, counsel and others representing any party to a relating to, in the nature of, or caused by the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesthe fullest extent provided in this Section.
(eE) Notwithstanding anything any of the foregoing, Parent shall have the sole right to conduct any Tax audit or other Tax contest ("TAX CONTEST") relating to the contrary however, that in respect of and to the extent a Tax Contest relates to a taxable period ending on or before the Closing Date, Parent shall designate the Shareholder Representative (or an individual designated by the Shareholder Representative) as an attorney-in-fact of the Company on IRS Form 2848 or other applicable power of attorney document for state Tax purposes only (the "TAX CONTEST REPRESENTATIVE") and allow the Tax Contest Representative to be present at meetings with taxing authorities and to review and comment on all correspondence with taxing authorities. Parent will consult in good faith with the Tax Contest Representative regarding the conduct of any such Tax Contest. Each of Company, the Tax Contest Representative and the Participating Shareholder agrees to furnish or cause to be furnished to Parent, upon request, as promptly as practicable, such information and assistance relating to the Participating Shareholder as is reasonably necessary for the preparation for any audit or Tax Contest and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsSection.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves A Person entitled to indemnification hereunder with respect to a third third-party claim (a the “Third Indemnified Person”) will give the Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered or Parties required to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) provide such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers indemnification (the “Indemnifying PersonsPerson”) prompt written notice of any Proceeding, claim or demand instituted by any third party (in each case, a “Claim”) in respect of which the Indemnified Person is entitled to indemnification hereunder describing all material aspects thereof; provided that, the failure of the Indemnified Person to provide such notice to the Indemnifying Person shall not affect the indemnification requirements set forth herein except to the extent that the delay damages or hinders the defense of such Claim. If the Indemnifying Person provides written notice to the Indemnified Person stating that the Indemnifying Persons would be required Person elects to indemnify defend the Acquiror Claim within 21 days after Indemnifying Person’s receipt of written notice from the Indemnified Persons for all Damages in connection with Person of such Third Party Claim NoticeClaim, the Indemnifying Persons Person shall have the right, but not at the obligation Indemnifying Person’s expense, to defend against, negotiate, settle or otherwise deal with such Claim and to have the Indemnified Person represented by counsel, reasonably satisfactory to the Indemnified Person, selected by the Indemnifying Person; provided, that (i) take control the Indemnified Person may participate in any proceeding with counsel of the defense its choice and investigation of such Third Party Claimat its own expense, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the sameBuyer, at any time when a Claim relates to or arises in connection with any criminal proceeding, indictment or investigation other than with respect to a misdemeanor, may assume the defense and otherwise deal with such Claim with counsel of its choice, and be fully indemnified therefor, (iii) Buyer, at any time when in the reasonable judgment of Buyer’s counsel a conflict of interest exists between the Indemnifying Persons’ sole cost Person and the Indemnified Person that precludes effective joint representation, may participate in the defense jointly with counsel for the Indemnifying Person and otherwise deal with such Claim with counsel of its choice at Indemnifying Person’s expense, and be fully indemnified therefor, (iiiiv) compromise Buyer, at any time in which injunctive relief is sought with respect to Buyer, its assets or settle such Third Party its business as part of the Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to may assume the defense and otherwise deal with such Claim with counsel of its choice, and be fully indemnified therefor, and (v) Buyer, at any time in which a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to involves a Material Customer or Material Supplier, or (6) may participate in the defense jointly with counsel for the Indemnifying Person and otherwise deal with such Third Party Claim is reasonably likely to result in Damages thatwith counsel of its choice at Indemnifying Person’s expense, taken with any other then existing claims under this Article 12, would not be not and be fully indemnified hereunder.
(b) In the event therefor; and provided, further, that the Indemnifying Persons defend Person may not enter into a settlement of any Claim without the Acquiror written consent of the Indemnified Persons against Person unless such settlement provides the Indemnified Person with a Third Party Claim, full release from such Claim and requires no more than a monetary payment for which the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at Person is fully indemnified. If notice is given to an Indemnifying Person of the assertion of any Claim and the Indemnifying Persons’ requestPerson does not, with within 21 days after the Indemnifying Persons and their attorneys in the investigationIndemnified Person’s notice is given, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything give written notice to the contrary herein, if the Indemnifying Persons do not Indemnified Person of its election to assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim, the Indemnifying Person will be bound by any determination made in such Claim or any compromise or settlement effected by the Indemnified Person. Notwithstanding anything herein any provision of this Agreement to the contrary, whether each Seller Party hereby consents to the nonexclusive jurisdiction of any court in which a proceeding in respect of a Claim is brought against any Buyer’s Indemnified Person for purposes of any Claim that a Buyer’s Indemnified Person may have under this Agreement with respect to such proceeding or not the Indemnifying Persons shall have assumed matters alleged therein and agrees that process may be served on such Seller Party with respect to such a Claim anywhere in the defense of such Third Party Claim, world. With respect to any Claim subject to indemnification under this Article VI: (i) both the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons Person and the Indemnifying Persons Person, as the case may be, shall keep the other Person fully informed of the status of such Claim and any related Proceedings (including copies of all pleadings, notices and material correspondence) at all stages thereof where such Person is not represented by its own counsel, and (ii) the Parties agree (each at its own expense) to render to each other such assistance as they may reasonably require of each other and to cooperate in good faith with each other in order to ensure the proper and adequate defense of any Claim. With respect to any Claim subject to indemnification under this Article VI, the Parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information and the attorney-client and work-product privileges. In connection therewith, each Party agrees that: (i) it will use commercially reasonable efforts its best efforts, in respect of any Claim in which it has assumed or participated in the defense, to avoid production of confidential information (consistent with Lawapplicable Legal Requirements and rules of procedure), and to cause (ii) all communications among employeesbetween any Party and counsel responsible for or participating in the defense of any Claim shall, counsel and others representing any party to a Third Party Claim to the extent possible, be made so as to preserve any applicable attorney-client or work-product privilegesprivilege.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given With respect to a claim made by Acquiror, which involves a any third party against an Indemnified Party for a matter which, if adversely determined, would be indemnifiable under Section 7.2 (a “Third Third-Party Claim”), an Indemnified Party shall be resolved as follows:
(a) Ifnotify the Stockholder Representative in writing of the Third-Party Claim promptly following receipt by such Indemnified Party of written notice of the Third-Party Claim; provided, within thirty (30) days after a Notice of Claim is delivered however, that failure to give such notification shall not affect the indemnification provided hereunder except to the Seller Representative, (x) extent the Seller Representative produces Indemnifying Parties shall have been actually materially prejudiced as a result of such failure. Upon receipt of such a written notice of election and (y) such notice a Third-Party Claim, subject to the other provisions of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticethis paragraph, the Indemnifying Persons Stockholder Representative shall have the right, but not the obligation to (i) take control of assume the defense and investigation control of such Third Third-Party Claim and shall deliver to the Indemnified Party written notice of such assumption by the Table of Contents Stockholder Representative within five (5) Business Days of its receipt of notice of such Third-Party Claim from the Indemnified Party; provided that the Indemnified Parties shall be allowed a reasonable opportunity to participate in the defense of such Third-Party Claim with their own counsel, at their own expense. None of the Stockholder Representative nor the Stockholder Parties shall seek or have any right to receive reimbursement for any expenses or losses incurred in investigating, settling or defending any Third-Party Claim. Notwithstanding the foregoing, for any Third-Party Claim which may be subject to indemnification under Section 7.2(b), Parent may, at its election, control, and if Parent so elects (which election must be made by written notice to the Stockholder Representative within five (5) Business Days of Parent’s delivery to the Stockholder Representative of notice of such Third-Party Claim), the Stockholder Representative shall not be entitled to control the defense of, such Third-Party Claim. The Stockholder Representative and Parent (as the case may be) shall act diligently and in good faith and take all steps reasonably necessary in the defense or settlement of any Third-Party Claim being controlled by or required to be controlled by the Stockholder Representative or Parent (as the case may be); in the event that the Stockholder Representative or Parent (as applicable) shall not so act, the other party may assume and control the defense or settlement of such Third-Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost Parties shall indemnify the Indemnified Parties for any Losses incurred, sustained or accrued by them in connection therewith, including Losses arising from the defense, investigation and/or judgment and expensereasonable amounts paid in settlement thereof. Parent shall use reasonable efforts to, and (iii) compromise shall use reasonable efforts to cause each of its respective controlled Affiliates to, reasonably cooperate in the defense of any Third-Party Claim being controlled by the Stockholder Representative in accordance with the terms hereof. The Indemnifying Party may not consent to a settlement of, or settle such Third the entry of any judgment arising from, any Third-Party Claim, which compromise or settlement shall be made only with without the prior written consent of Acquiror; providedParent, provided that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with is controlling the defense of such Third Third-Party Claim in accordance with the terms hereof and shall (i) pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement, (ii) not encumber any of the assets of any Indemnified Party or agree to any restriction or condition that would apply to or adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business and (iii) obtain, as a condition of any settlement or other resolution, a complete release of the Indemnified Party affected by such Third-Party Claim. If the Stockholder Representative is diligently and in good faith defending a Third-Party Claim it is entitled to defend hereunder, no Indemnified Party may consent to a settlement of, or the entry of any judgment arising from, such Third-Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsStockholder Representative (which consent, which consent if unreasonably withheld or delayed, shall not be unreasonably withheldrequired). In the case of a Third-Party Claim the defense of which is controlled by Parent, conditioned Parent may settle or delayed.
(d) The Acquiror consent to the entry of a judgment against it or any Indemnified Persons and Party without the Indemnifying Persons prior written consent of the Stockholder Representative, provided that in such case, Parent shall use commercially all reasonable efforts to avoid production deliver prior written notice to the Stockholder Representative of confidential information (consistent with Law), any such settlement effected by Parent and the Indemnified Parties shall be entitled to cause all communications among employees, counsel indemnification for amounts paid in settlement and others representing any party judgment and Losses related thereto only to a the extent such amounts are reasonable under the circumstances relating to the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesClaim.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given not later than 30 days after receipt of Claim given by Acquirorthe Indemnification Notice, which involves a third party (a “to assume control of the defence, compromise or settlement of the Third Party Claim”Claim provided that
(a) the Third Party Claim involves only money damages and does not seek any injunctive or other equitable relief;
(b) if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by the same counsel would, in the judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences); and
(c) settlement of, shall be resolved as followsor an adverse judgment with respect to, the Third Party Claim is not, in the judgment of the Indemnitee, likely to establish a precedent, custom or practice adverse to the continuing business interest of the Indemnitee.
(2) On the assumption of control by the Indemnitor, it is conclusively established for purposes of this Agreement that the Third Party Claim is within the scope of, and is subject to, the indemnification pursuant to this Article 7, and:
(a) Ifthe Indemnitor will actively and diligently proceed with the defence, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf compromise or settlement of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ Indemnitor’s sole cost and expense, and including the retaining of counsel reasonably satisfactory to the Indemnitees Representative;
(iiib) compromise or settle such Third Party Claimthe Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim;
(c) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and
(d) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 7.6(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 7.6(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitees Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expenseuse its best efforts to make available to the Indemnitor all relevant information in its possession or under its control (provided that it does not cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, monitor and further participate in (but not control) the investigationreasonable opinion of counsel for the Indemnitor, trial and defense of such Third Party Claim and any appeal arising therefrom.necessary to enable the Indemnitor to conduct that defence, provided always that:
(ca) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation no admission of fault may be made by or does not acknowledge in writing within thirty (30) days after receipt on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser;
(b) no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent of the Vendor; and
(c) the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee’s legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) If (i) the Indemnitor does not give the relevant Indemnitees Representative the notice provided in Section 7.6(1), (ii) any of the conditions in Section 7.6(1) are unsatisfied, or (iii) the Indemnitor breaches any of its obligations under Sections 7.6(2) or 7.6(3), the applicable Indemnitees Representative may assume control of the defence, compromise or settlement of the Third Party Claim as in its sole discretion may appear advisable, and is entitled to retain counsel as in its sole discretion may appear advisable, the whole at the Indemnitor’s sole cost and expense. Any settlement or other final determination of the Third Party Claim will be binding on the Indemnitor. The Acquiror Indemnified Persons Indemnitor will, at its sole cost and expense, cooperate fully with the Indemnifying Persons shall Indemnitee and its Indemnitees Representative and use commercially reasonable its best efforts to avoid production make available to the Indemnitee and its Indemnitees Representative all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of confidential information counsel for the Indemnitee, necessary to enable the Indemnitee to conduct the defence. The Indemnitor will reimburse the Indemnitee and its Indemnitees Representative promptly and periodically for the costs of defending against the Third Party Claim (consistent with Lawincluding legal fees and expenses), and will remain responsible for any Losses the Indemnitee and its Indemnitees Representative may suffer resulting from, arising out of or relating to cause all communications among employees, counsel and others representing any party to a the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary fullest extent provided in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle 7.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lexaria Bioscience Corp.)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a If any third party shall notify any Buyer Indemnified Person of any matter which may give rise to a claim for indemnification against the Shareholder under this Article 7, then such Buyer Indemnified Person shall notify the Shareholder thereof promptly in writing; provided, however, that no delay on the part of such Buyer Indemnified Person in notifying the Shareholder shall relieve the Shareholder from any liability or obligation hereunder unless (a “Third Party Claim”)and then solely to the extent that) the Shareholder is damaged thereby. If the Shareholder notifies such Buyer Indemnified Person within 15 days after such Buyer Indemnified Person has given notice of the matter that the Shareholder is assuming the defense thereof, shall be resolved as follows:
(a) If, within thirty (30) days after a Notice the Shareholder will defend such Buyer Indemnified Person against the matter with counsel of Claim is delivered its choice reasonably satisfactory to the Seller Representativesuch Buyer Indemnified Person, (x) the Seller Representative produces a notice of election and (yb) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Buyer Indemnified Persons for all Damages Person will cooperate in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or matter and may retain separate co-counsel at its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expenseexpense (except that the Shareholder will be responsible for the fees and expenses of the separate co-counsel to the extent that such Buyer Indemnified Person concludes reasonably that the counsel the Shareholder has selected has a conflict of interest), monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything such Buyer Indemnified Person will not consent to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation entry of any judgment or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against enter into any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein settlement with respect to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder matter without the prior written consent of the Indemnifying PersonsShareholder (not to be withheld unreasonably), which consent shall not be unreasonably withheld, conditioned or delayed.
and (d) The Acquiror the Shareholder will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the prior written consent of such Buyer Indemnified Persons Person (not to be withheld unreasonably); provided, however, that if the Shareholder receives a bona fide offer of settlement providing for a general release of such Buyer Indemnified Person from all liability with respect to the matter solely in exchange for cash, and such Buyer Indemnified Person does not consent to the settlement of the matter pursuant to such offer, then such Buyer Indemnified Person shall assume sole defense of such matter and the Indemnifying Persons indemnity obligation of the Shareholder with respect to such matter 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything limited to the contrary amount set forth in this Agreementthe settlement offer. If the Shareholder does not notify such Buyer Indemnified Person within 15 days after such Buyer Indemnified Person has given notice of the matter that the Shareholder is assuming the defense thereof, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingshowever, such Buyer Indemnified Person may defend against, or enter into any settlement with respect to, the matter in any manner it may reasonably deem appropriate.
Appears in 1 contract
Sources: Stock Purchase Agreement (Inverness Medical Innovations Inc)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfSubject to paragraph (b) of this Section ------------------ ------- 9.4, within thirty the Indemnified Person under this Article IX shall have the right to --- conduct and control, through counsel of its choosing, any third party claim, action or suit, and the Indemnified Person may compromise or settle the same, provided that the Indemnified Person shall give the Indemnifying Party advance notice of any proposed compromise or settlement. The Indemnified Person shall permit the Indemnifying Party to participate in the defense of any such action or suit through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the Indemnifying Party. Subject to paragraph (30b) of this Section 9.4, any compromise or settlement with respect to a claim for ----------- money damages effected after the Indemnifying Party by notice to the Indemnified Person shall have disapproved such compromise or settlement shall discharge the Indemnifying Party from liability with respect to the subject matter thereof, and no amount in respect thereof shall be claimed as Loss or Expense under this Article IX.
(b) If the remedy sought in any action or suit referred to in paragraph (a) of this Section 9.4 is solely money damages and will have no ----------- continuingeffect on the business of the Indemnified Person, the Indemnifying Party shall have 15 business days after a Notice receipt of Claim is delivered the notice referred to in Section 9.4(a) to notify the Indemnified Person that it elects to conduct and -------------- control such action or suit. If the Indemnifying Party does not give the foregoing notice, 29 the Indemnified Person shall have the right to defend, contest settle or compromise such action or suit in the exercise of its exclusive discretion, and the Indemnifying Party shall, upon request from the Indemnified Person, promptly pay to the Seller RepresentativeIndemnified Person in accordance with the other terms of this Article IX the amount of any Loss resulting from its liability to the third party claimant and all related Expense. If the Indemnifying Party gives the foregoing notice, the Indemnifying Party shall have the right to undertake, conduct and control, through counsel of its own choosing and at the sole expense of the Indemnifying Party, the conduct and settlement of such action or suit and the Indemnified Party shall cooperate with the Indemnifying Party in connection therewith; provided that (x) the Seller Representative produces a notice Indemnifying Party shall not thereby permit to -------- exist any lien, encumbrance or other adverse change upon any asset of election and the Indemnified Person; (y) the Indemnifying Party shall permit the Indemnified Person to participate in such notice conduct or settlement through counsel chosen by the Indemnified Person, but the fees and expenses of election includes a written acknowledgment such counsel shall be borne by the Indemnified Person except as provided in clause (z) below; and (z) the Indemnifying Party shall agree promptly to reimburse to the extent required under this Article IX the Indemnified Person for the full amount of any Loss resulting from such action or suit and all related Expense incurred by the Seller Representative on behalf Indemnified Person, except fees and expenses of counsel for the Indemnified Person incurred after the assumption of the Seller Guarantors conduct and the Sellers (the “Indemnifying Persons”) that control of such action or suit by the Indemnifying Persons would be required to indemnify Party. So long as the Acquiror Indemnified Persons for all Damages Indemnifying Party is contesting any such action or suit in connection with such Third Party Claim Noticegood faith, the Indemnifying Persons Indemnified Person shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise pay or settle any such Third Party Claim, which compromise action or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullsuit. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingpay or settle any such action or suit, defend provided that in such Third Party Claim and have event the sole power Indemnified Person shall waive any right to direct and control such defense (all at the cost and expense of indemnity therefor by the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law)Party, and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to no amount in respect thereof shall be made so claimed as to preserve any applicable attorney-client Loss or work-product privilegesExpense under this Article IX.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered With respect to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment claims for indemnification resulting from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages or in connection with such Third Party Claim Noticeany legal proceeding commenced by a third party, the Indemnifying Persons Indemnitee will give the Claim Notice to the Indemnitor promptly after receipt of the assertion of such third party claim; provided, however, that the failure or delay to so notify the Indemnitor shall not relieve the Indemnitor of any obligation or liability that they may have to the Indemnitee except to the extent that the Indemnitor’s ability to defend or resolve such third party claim is adversely affected thereby.
(b) Subject to the rights of any insurer or other third party having potential liability therefor, the Indemnitor shall have the right, but not upon written notice given to the obligation to (i) take control Indemnitee and the Escrow Agent, where applicable, within 30 days after receipt of the Claim Notice relating to a third party claim, to assume the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject or the prosecution thereof by written notice to the approval Indemnitee, including the employment of Acquiror, such approval not to be unreasonably withheld, conditioned counsel or delayed) to handle and defend the sameaccountants, at the Indemnifying Persons’ sole Indemnitor’s cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement . The Indemnitee shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure)employ, (2) the Acquiror Indemnified Persons have received advice at its expense, counsel separate from counsel that an actual or potential conflict exists between employed by the Acquiror Indemnified Persons Indemnitor in any such action and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation to participate therein. The Indemnitor shall not be liable for any settlement of any criminal Law by an Acquiror Indemnified Personsuch claim made without its prior written consent, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would which shall not be unreasonably withheld or delayed. Whether or not be fully indemnified hereunder.
(b) In the event that Indemnitor chooses to so defend or prosecute such claim, all the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons parties hereto shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, includingconduct thereof, if appropriate reasonably practicable, and related shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested by the Indemnitor in connection therewith. The Indemnitor shall be subrogated to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense all rights and remedies of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefromIndemnitee.
(c) Notwithstanding anything to the contrary hereinIf, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) 30 days after receipt of the Third Party a Claim Notice its obligation relating to indemnify a third party claim, the Acquiror Indemnified Persons against any Damages arising from Indemnitor does not give written notice to the Indemnitee and the Escrow Agent, where applicable, of the Indemnitor’s election to assume the defense or handling of such Third Party Claimthird party claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingIndemnitee may, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost Indemnitor’s expense (which shall be paid from time to time by the Indemnitor as such expenses are incurred by the Indemnitee), select counsel in connection with conducting the defense or handling of such third party claim and expense defend or handle such third party claim in a reasonable manner, provided, however, that the Indemnitee shall keep the Indemnitor timely apprised of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim status of such third party claim and shall not be adversely affected by assuming the defense of settle such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder third party claim without the prior written consent of the Indemnifying PersonsIndemnitor, which consent shall not be unreasonably withheld. If the Indemnitee defends or handles such third party claim, conditioned the Indemnitor shall cooperate with the Indemnitee and shall be entitled to participate in the defense or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production handling of confidential information (consistent such third party claim with Law), and to cause all communications among employees, its own counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesat its own expense.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (a) In the event of Claim given the assertion of any claim or the commencement by Acquirorany Person of any Proceeding against a Buyer Indemnitee with respect to which Seller may become obligated to hold harmless, which involves a third party indemnify, compensate or reimburse any Buyer Indemnitee pursuant to this Article IX (each, a “Third Seller Third-Party Claim”), the Buyer will, promptly after receipt of notice of any such Seller Third-Party Claim (and, in any event, in the time period contemplated by Section 9.05(a)), notify Seller of the commencement thereof (such notice, a “Buyer Third-Party Claim Notice”); provided, however, that any failure on the part of the Buyer to so notify Seller shall not limit any of the obligations of Seller under this Article IX (except to the extent such failure actually and materially prejudices the defense of such Proceeding). The Seller shall have the right to proceed with, and to control, at its sole cost and expense, the defense of such Seller Third-Party Claim on its own (with counsel of national standing reasonably satisfactory to the Buyer (and Simpson ▇▇▇▇▇▇▇ & ▇▇▇▇▇ett ▇▇▇ ▇▇▇ll be resolved deemed satisfactory to the Buyer)); provided, that (i) as follows:
a condition precedent to Seller’s right to proceed with, and to control, the defense of such Seller Third-Party Claim, the Seller must (aA) If, within thirty fifteen (3015) days after a Notice Buyer Indemnitee has given notice of Claim such Seller Third-Party Claim, notify the Buyer that Seller is delivered electing to proceed with, and to control, the defense of such Seller RepresentativeThird-Party Claim, (xB) such notice must include reasonably satisfactory evidence that Seller has sufficient resources to defend such Seller Third-Party Claim and (C) the Seller Representative produces a notice must irrevocably agree in writing with the Buyer to indemnify the Buyer Indemnitees from and against the entirety of election any Losses (without any reservation of rights or other limitations (including the limitation set forth in Section 9.04(b) with respect to the Initial Indemnity Holdback Amount), other than as set forth in Section 9.04(a) and (y) solely to the extent that such notice of election includes a written acknowledgment from Losses are subject to the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”Deductible set forth therein) that the Indemnifying Persons would be required Buyer Indemnitees may suffer or incur or to indemnify which the Acquiror Indemnified Persons for all Damages in connection Buyer Indemnitees may otherwise become subject and which arise from or as a result of or are connected with such Third Seller Third-Party Claim Notice, the Indemnifying Persons shall have the right, but and (ii) Seller may not the obligation to (i) take assume control of the defense and of, or conduct the defense of, any Seller Third-Party Claim (A) involving any criminal proceeding, action, indictment, allegation or investigation or seeking to impose any criminal penalty, fine or other sanction, (B) made by any Governmental Authority or to which any Governmental Authority is a named party, (C) in which relief other than monetary Losses is sought, including any injunctive or other equitable relief, (D) which, if adversely determined, would reasonably be expected, in the good faith judgment of the Buyer, to establish a precedent, custom or practice materially adverse to the continuing business interests or prospects of any Buyer Indemnitee or its Affiliates, (E) involving any proceeding, action, claim, indictment, allegation or investigation relating to worker classification, vicarious liability, joint employment, product liability, understandings with any labor or trade union, works council, representative body or similar organization, or the scope, validity or enforceability of arbitration provisions or terms of service, end user license agreements or similar arrangements, (F) involving any Proceeding, action, claim, indictment, allegation or investigation relating to Taxes or (G) that could, in the good faith judgment of Buyer, r▇▇▇▇▇ably be expected to result in Losses in excess of the maximum liability of the Seller Indemnitors under this Article IX. If Seller proceeds with the defense of any such Third Seller Third-Party Claim, the Buyer and its counsel (iiat the Buyer’s sole expense) employ may participate in (but not control the conduct of) the defense of such Seller Third-Party Claim in a manner that would not result in the loss of any attorney-client privilege, attorney work product privilege or any other legal privilege. If Seller so proceeds with the defense of any such Seller Third-Party Claim, the Buyer shall make available to Seller any documents and engage attorneys of their own choice (subject materials in the Buyer’s possession or control that may be reasonably necessary to the approval defense of Acquiror, such approval Seller Third-Party Claim. Seller will give the Buyer written notice of the Seller’s intention to settle any such Seller Third-Party Claim at least ten (10) days prior to the settlement of any such Seller Third-Party Claim (the “Seller Third-Party Claim Settlement Notice Period”). Seller shall not to settle any Seller Third-Party Claim without the consent of the Buyer (which shall not be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror); provided, however, that such consent will not Seller shall be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right permitted to assume the defense of settle a Third Seller Third-Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsBuyer if all of the following are true: (1) Losses are recovered solely from the reduction of the Indemnity Holdback Amount or otherwise satisfied in full substantially concurrently with such settlement; (2) Seller has given the Buyer notice in accordance with the foregoing sentence; (3) no non-monetary, injunctive or other equitable relief would be imposed against any Buyer Indemnitee or any of its Affiliates; (4) there is no finding or admission of wrongdoing, any violation of applicable Law or any violation of the rights of any party by any Buyer Indemnitee or any of its Affiliates and (5) the settlement includes (x) an express, unconditional and unqualified release from any and all Liability of the Buyer Indemnitees and their Affiliates in respect of such Seller Third-Party Claim and (y) all parties to such settlement are expressly bound in writing to keep the terms of the settlement confidential. With respect to any Seller Third-Party Claim for which (I) the Seller has not elected to assume and conduct the defense against such Seller Third-Party Claim pursuant to this Section 9.06(a) or (II) the Seller does not have the right to assume and conduct the defense against such Seller Third-Party Claim pursuant to this Section 9.06(a), the Buyer shall have the right, at its election, to proceed with, and to control, the defense of such Seller Third-Party Claim on its own; provided, however, that the Seller (at its sole expense) may participate in (but not control the conduct of) the defense of such Seller Third-Party Claim. The Buyer will not consent shall to the entry of any judgment or enter into any settlement or compromise of any Seller Third-Party Claim without the prior consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed.
(db) In the event of the assertion of any claim or the commencement by any Person of any Proceeding against a Seller Indemnitee with respect to which a Buyer Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Seller Indemnitee pursuant to this Article IX (each, a “Buyer Third-Party Claim”), Seller will promptly after receipt of notice of any such Buyer Third-Party Claim (and, in any event, in the time period contemplated by Section 9.05(a)), notify the Buyer in writing of the commencement thereof (such notice, a “Buyer Third-Party Claim Notice”); provided, however, that any failure on the part of the Seller to notify the Buyer shall not limit any of the obligations of the Buyer under this Article IX (except to the extent such failure actually and materially prejudices the defense of such Proceeding). The Acquiror Indemnified Persons and Buyer shall have the Indemnifying Persons shall use commercially reasonable efforts right, at its election, to avoid production of confidential information (consistent with Law)proceed with, and to cause all communications among employeescontrol, counsel and others representing any party to a Third the defense of such Buyer Third-Party Claim on its own; provided, that (i) as a condition precedent to be the Buyer’s right to proceed with, and to control, the defense of such Buyer Third-Party Claim, the Buyer must (A) notify Seller that the Buyer is electing to proceed with, and to control, the defense of such Buyer Third-Party Claim and (B) such notice must include reasonably satisfactory evidence that the Buyer has sufficient resources to defend such Buyer Third-Party Claim and (ii) the Buyer may not assume control of the defense of, or conduct the defense of, any Buyer Third-Party Claim (A) involving any criminal proceeding, action, indictment, allegation or investigation or seeking to impose any criminal penalty, fine or other sanction, (B) made so as by any Governmental Authority or to preserve which any applicable Governmental Authority is a named party in which relief other than monetary Losses is sought, (C) in which injunctive relief or specific performance is sought or (D) involving any Proceeding, action, claim, indictment, allegation or investigation relating to Taxes. If the Buyer proceeds with the defense of any such Buyer Third-Party Claim, Seller and its counsel (at Seller’s sole expense) may participate in (but 80 not control the conduct of) the defense of such Buyer Third-Party Claim in a manner that would not result in the loss of any attorney-client privilege, attorney work product privilege or workany other legal privilege. If the Buyer so proceeds with the defense of any such Buyer Third-product privileges.
(e) Notwithstanding anything Party Claim, Seller shall make available to the contrary Buyer any documents and materials in this AgreementSeller’s possession or control that may be reasonably necessary to the defense of such Buyer Third-Party Claim. The Buyer will give Seller written notice of the Buyer’s intention to settle any such Buyer Third-Party Claim at least ten (10) days prior to the settlement of any such Buyer Third-Party Claim (the “Buyer Third-Party Claim Settlement Notice Period”). The Buyer shall not settle any Buyer Third-Party Claim without the prior written consent of the Seller, Section 8.1(dwhich shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Buyer shall be permitted to settle a Buyer Third-Party Claim without the prior written consent of Seller if all of the following are true: (i) the Buyer has given Seller notice in accordance with the foregoing sentence; (ii) the settlement does not impose any restrictions on the operations of the business of Seller or its Affiliates; (iii) the settlement does not contain any admission of liability or wrongdoing by Seller or its Affiliates and (iv) the settlement includes an unqualified release from all liability of Seller and its Affiliates in respect of such Buyer Third-Party Claim. Notwithstanding the foregoing, in no event shall exclusively govern S Corporation Tax Proceedingsany settlement without the express consent of Seller be dispositive of whether such Buyer Third-Party Claim represented an indemnifiable matter hereunder in the first place or determinative of the existence or amount of Losses relating to such matter for which any Seller Indemnitee shall be entitled to indemnification hereunder; provided, further, for the avoidance of doubt, that in the event that Seller consented to any such settlement, Seller shall have no power or authority to object to such claim and the payment of Losses in respect thereof.
Appears in 1 contract
Third Party Claims. Each Notice In the event of Claim given the assertion or commencement by Acquirorany third party of any claim or Proceeding (whether against the Surviving Corporation, against Acquiror or against any other Person) with respect to which involves any of the Company Securityholders may become obligated to hold harmless, indemnify, compensate or reimburse any Indemnified Person pursuant to this Article VIII, the Indemnified Person shall give written notice thereof to the Securityholders’ Representative Committee, and thereafter shall keep the Securityholders’ Representative Committee and the party, or parties, from which indemnification is sought (the “Indemnitor”) reasonably informed with respect thereto; provided, however, that failure of the Indemnified Person to give the Securityholders’ Representative Committee and Indemnitor notice as provided herein shall not relieve the Indemnitor of its obligations hereunder except to the extent (and only to the extent) that such failure materially prejudices the Indemnitor’s ability to defend such claim against a third party (a “Third Party Claim”), shall be resolved as follows:
(a) Ifparty. The Indemnitor may, within thirty ten (3010) days after a Notice of Claim is delivered receiving the notice from Indemnified Person as set forth herein, give written notice to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) Indemnified Person stating that the Indemnifying Persons would Indemnitor agrees to be required to indemnify the Acquiror Indemnified Persons liable for all Damages of the Indemnified Person in connection with such Third Party Claim third party claim and intends to defend against such claim at the Indemnitor’s own cost and expense (the “Defense Notice”). If an Indemnitor properly and timely delivers a Defense Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of counsel for the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice shall be selected by the Indemnitor (subject to the approval consent of Acquiror, such approval Indemnified Person which consent shall not to be unreasonably withheld, conditioned withheld or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement Indemnitor shall be made only with the written consent of Acquirorentitled to assume such defense; provided, however, that such consent will not be required if such settlement includes an unconditional release from and after the delivery of the Acquiror notice of a claim by Indemnified Persons Person and provides solely for payment until such time as the Indemnitor delivers a Defense Notice, the Indemnified Person may take such actions related to the defense of monetary damages for which such claim as are reasonably necessary and appropriate to defend such claim, and any such actions shall be at the Acquiror Indemnified Persons will be indemnified in fullIndemnitor’s expense. Notwithstanding the foregoing, the Indemnifying Persons Indemnitor shall not have the right to assume or continue the defense of a Third Party Claim any Proceeding if (1i) the Indemnifying Persons fail Indemnified Person shall have one or more legal or equitable * Confidential treatment requested. defenses available to it which are different from or in addition to those available to the Indemnitor, and, in the reasonable opinion of the Indemnified Person, counsel for the Indemnitor could not adequately represent the interests of the Indemnified Person because such interests could be in conflict with those of the Indemnitor, (ii) such Proceeding is reasonably likely to cause a material and adverse effect on any other matter beyond the scope or limits of the indemnification obligation of the Indemnitor, (iii) the Indemnitor shall not have assumed the defense of the Proceeding in a timely fashion (but in any event at least 5 days prior to the deadline for the filing of any necessary filings or pleadings), or shall at any point cease to actively and diligently conduct the defense of the Third Party Claim Proceeding or (after notice and reasonable opportunity to cure), (2iv) the Acquiror Indemnified Persons have received advice from counsel third party claim that an actual is the subject of the Proceeding relates to, or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons otherwise arises in connection with with, Taxes or any criminal or regulatory enforcement action. If the Indemnitor shall assume the defense of any Proceeding, the Indemnified Person shall be entitled to participate in any Proceeding at its expense, and the Indemnitor shall not settle such Third Party Claim, (3) such Third Party Claim seeks a finding Proceeding unless the settlement shall include as an unconditional term thereof the giving by the claimant or admission the plaintiff of a violation full and unconditional release of any criminal Law by an Acquiror the Indemnified Person, (4) from all liability with respect to the matters that are subject to such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material SupplierProceeding, or (6) such Third Party Claim is otherwise shall have been approved reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) by the Indemnified Person. In the event that the Indemnifying Persons defend Indemnitor does not elect to, or is not permitted to assume sole control over the Acquiror defense of a Proceeding pursuant to this Section 8.6, and the Indemnified Persons against a Third Party ClaimPerson proceeds with the defense of any such claim or Proceeding, the Acquiror Indemnified Persons shall cooperate in (i) all reasonable respects, at expenses relating to the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim claim or Proceeding shall be borne and paid exclusively by the Indemnitor, (ii) each Company Securityholder shall make available to the Indemnified Person any appeal arising therefrom, including, if appropriate documents and related materials in his possession or control that may be necessary to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim claim or Proceeding, and any appeal arising therefrom.
(ciii) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons Person shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, adjust or compromise such claim or pay such Third Party Claim for which they seeks indemnification hereunder without Legal Proceeding with the prior written consent of the Indemnifying PersonsSecurityholders’ Representative Committee; provided, which however, that such consent shall not be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice After the Closing, in the event an Indemnified Party becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”) which such Indemnified Party reasonably believes may result in a demand for indemnification pursuant to this Article VII, Parent shall notify the Escrow Agent (if the Third Party Claim is made by Parent prior to the release of the Escrow Fund) and the Securityholder Representative (or the Preferred Holder, as applicable) in writing of such claim and Securityholder Representative (or the Preferred Holder, as applicable) shall notify Parent in writing of such claim, as applicable. If the Third Party Claim may result in a claim against the Escrow Fund or against the Legacy Equityholders (or the Preferred Holder, as applicable), the Securityholder Representative on behalf of the Legacy Equityholders (or the Preferred Holder, as applicable), shall be resolved as follows:
(a) Ifentitled, at its expense, within thirty (30) days after a Notice receipt of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeto undertake, conduct and control, through counsel of its own choosing and at its own expense, the Indemnifying Persons settlement or defense thereof. If the Securityholder Representative (or the Preferred Holder, as applicable) elects to undertake the defense of a Third Party Claim, it shall have so notify the right, but not Indemnified Party that it intends to assume the obligation to (i) take control of the defense and investigation of such Third claim and the Securityholder Representative (or the Preferred Holder, as applicable) shall conduct any such defense reasonably and in good faith, and the Indemnified Party Claimshall be entitled to participate with its own counsel at its own expense; provided that, if in the reasonable opinion of counsel for such Indemnified Party, there is a reasonable likelihood of a conflict of interest between the interests of the Legacy Equityholders and those of the Indemnified Party concerning such claim by a third Person, then the reasonable cost of one counsel for the Indemnified Party shall be borne by the Legacy Equityholders. Notwithstanding the foregoing, the Securityholder Representative (or the Preferred Holder, as applicable) shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim by a third Person (i) relating to or arising primarily in connection with any criminal or quasi-criminal Proceeding or (ii) employ and engage attorneys that primarily involves any Payor or vendor of their own choice the Surviving Entity or the Company Subsidiaries; provided that, in the event that any claim is settled without the consent of the Securityholder Representative (subject to or the approval of AcquirorPreferred Holder, such approval as applicable) (which consent will not to be unreasonably withheld, conditioned or delayed) to handle and defend the same), at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall not be made only dispositive of the amount of Losses. The Securityholder Representative (or the Preferred Holder, as applicable) shall not, except with the written consent of Acquiror; providedthe Indemnified Party, enter into any settlement or compromise any claim by a third Person that (A) does not include as a term thereof the giving by the Person or Persons asserting such consent will not be required if claim, on behalf of such settlement includes an Persons and their respective Affiliates, to all Indemnified Parties of a full and unconditional release of all such Indemnified Parties from all Liability (subject to the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense application of the Third Party Claim Threshold) with respect to such claim or consent to entry of any judgment; (after notice and reasonable opportunity to cure), (2B) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a involves any finding or admission of a any violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, Law; or (6C) such Third Party Claim is reasonably likely to result in Damages that, taken with involves any other then existing claims under non-monetary relief or remedy. Any consent required by this Article 12, would Section 7.4(f) shall not be not be fully indemnified hereunder.
unreasonably delayed, withheld or conditioned. If the Securityholder Representative (bor the Preferred Holder, as applicable) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge notify the Indemnified Party in writing within thirty (30) days after receipt of the notice of the Third Party Claim Notice its obligation that it elects to indemnify undertake the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimdefense of the claim described therein, then the Acquiror Indemnified Persons Parent shall have the right to retain separate undertake the defense or prosecution of such claim through counsel of their choosingits own choice, defend such Third Party Claim in which event it shall do so in good faith and have using commercially reasonable efforts, it shall keep the sole power to direct Securityholder Representative (or the Preferred Holder, as applicable) reasonably informed of all material developments and control such defense it shall permit the Securityholder Representative (all or the Preferred Holder, as applicable), at the its own cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled expense, to indemnification hereunder); participate in all meetings and to review and comment on all pleadings and material correspondence related thereto, it being understood that the Acquiror reasonable fees and expenses incurred by the Indemnified Persons’ right Party in connection with such defense or prosecution shall be considered Losses hereunder with respect to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense subject matter of such Third Party Claim. Notwithstanding anything herein claim, indemnifiable to the contraryextent provided in Section 7.2; provided that, whether or not in the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder event that any claim is settled without the prior written consent of the Indemnifying PersonsSecurityholder Representative (or the Preferred Holder, as applicable) (which consent shall will not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law), and such settlement shall not be dispositive of the amount of Losses. In the event that the Securityholder Representative has consented to cause all communications among employeesany such settlement in respect of the Legacy Equityholders, counsel and others representing the Legacy Equityholders shall have no power or authority to object to the amount of any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesby Parent.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Global Partner Acquisition Corp.)
Third Party Claims. Each Notice of Claim given Promptly after the assertion by Acquiror, which involves a any third party of any claim against any Indemnified Person (a “Third Third-Party Claim”)) that, in the judgment of such Indemnified Person, may result in the incurrence by such Indemnified Person of Damages for which such Indemnified Person would be entitled to indemnification pursuant to this Agreement, such Indemnified Person shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered deliver to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes indemnifying party a written acknowledgment from notice describing in reasonable detail such Third-Party Claim; provided, however, that no delay on the Seller Representative on behalf part of the Seller Guarantors Indemnified Person in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligations hereunder, except to the extent that said notice is given after the Survival Date or the indemnifying party has been prejudiced thereby, and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required then only to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons extent. The indemnifying party shall have the right, but not the obligation obligation, exercisable in its sole discretion by written notice to the Indemnified Person within thirty (i30) take control days of receipt of notice from the Indemnified Person of the commencement of or assertion of any Third-Party Claim, to assume the defense and investigation control the settlement of such Third Third-Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement . The Indemnified Person shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) ), at its own expense, the investigation, trial defense and settlement of any Third-Party Claim. If the indemnifying party does not elect to undertake and conduct the defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third a Third-Party Claim, then the Acquiror Indemnified Persons Person shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming undertake the defense of such Third Third-Party Claim. Notwithstanding anything herein to In the contrary, whether or not event the Indemnifying Persons shall have indemnifying party has assumed the defense of such Third any Third-Party Claim, the Acquiror Indemnified Persons indemnifying party shall not settleconsent to a settlement of, compromise or pay the entry of any judgment arising from, any such Third Third-Party Claim for which they seeks indemnification hereunder without the Indemnified Person’s prior written consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law), unless such settlement or judgment relates solely to monetary damages and provides for a complete release of the Indemnified Person, in which case, no such consent shall be required. The Indemnified Person shall have the right to cause all communications among employeessettle, counsel and others representing or consent to the entry of any party to a Third judgment arising from, any Third-Party Claim for which the indemnifying party has not assumed the defense, but such settlement or consent shall not be binding on the indemnifying party if such settlement or consent was without such indemnifying party’s consent (such consent not to be made so unreasonably withheld, conditioned, or delayed). Whether or not the indemnifying party elects to defend or prosecute any Third-Party Claim, both parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as to preserve any applicable attorney-client or work-product privilegesmay be reasonably requested in connection therewith.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by AcquirorIf either party, which involves a third party including its distributors, affiliates or their respective officers, directors, employees, servants or agents (a in each case an “Third Party ClaimIndemnitee”), receives any written Claim which such Indemnitee believes is the subject of indemnity hereunder by the other party hereto (an “Indemnitor”), the Indemnitee shall be resolved promptly give notice thereof to the Indemnitor, provided that the failure to give timely notice to the Indemnitor as follows:
(a) If, within thirty (30) days after a Notice contemplated hereby shall not release the Indemnitor from any liability to the Indemnitee unless the Indemnitor demonstrates that the defense of such Claim is delivered to prejudiced by such failure (and, in the Seller Representativeevent of such late notice, (x) the Seller Representative produces a Indemnitor is only responsible for costs incurred after the notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors is provided and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required Indemnitee is responsible for any increase in costs related to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons its late notice). The Indemnitor shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject by prompt notice to the approval of AcquirorIndemnitee, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party such Claim if (1) at its cost, with counsel reasonably satisfactory to the Indemnifying Persons fail to actively and diligently conduct Indemnitee. If the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with Indemnitor does not so assume the defense of such Third Party ClaimClaim or, (3) having done so, does not diligently pursue such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claimdefense, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at Indemnitee may assume the Indemnifying Persons’ requestdefense, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingits choice, defend such Third Party Claim and have the sole power to direct and control such defense (all but at the cost and expense of the Indemnifying Persons if Indemnitor. If the Indemnitor so assumes the defense, it is ultimately determined that shall have absolute control of the Acquiror Indemnified Persons are entitled to indemnification hereunder)litigation; it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall Indemnitee may, nevertheless, participate therein through counsel of its choice and at its cost. The party not be adversely affected by assuming the defense of any such Third Party Claim. Notwithstanding anything herein Claim shall render all reasonable assistance to the contraryparty assuming such defense, whether or not the Indemnifying Persons shall have assumed the defense with all reasonable pre-approved out-of-pocket costs of such Third Party Claim, the Acquiror Indemnified Persons assistance (which shall not settleinclude any costs of time spent) for the account of the Indemnitor. No such Claim shall be settled other than by the party defending the same, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without and then only with the prior written consent of the Indemnifying Personsother party, which consent shall not be unreasonably withheld, conditioned ; provided that the Indemnitee shall have no obligation to consent to any settlement of any such Claim which imposes on the Indemnitee any liability or delayedobligation which cannot be assumed or performed in full by the Indemnitor.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given In the event that any Purchaser Indemnitee desires to make a claim against any Seller under Section 9.2 above in connection with any action, suit, proceeding or demand at any time instituted against or made upon such Purchaser Indemnitee by Acquiror, which involves a any third party for which such Purchaser Indemnitee may seek indemnification hereunder (a “Third Party Claim”), such Purchaser Indemnitee shall promptly deliver notice of such Third Party Claim and of such Purchaser Indemnitee’s claim for indemnification with respect thereto to the Sellers Representative or, if such Third Party Claim is an Individual Seller Claim, to the individual Seller against whom such Individual Seller Claim is made, provided, that the failure by such Purchaser Indemnitee to notify the Sellers Representative of any such Third Party Claim or any individual Seller of any Individual Seller Claim, as the case may be, shall not adversely affect such Purchaser Indemnitee’s rights to be resolved as follows:
(a) If, within indemnified hereunder except to the extent that the indemnifying Seller or Sellers are materially prejudiced thereby. Within thirty (30) days after a Notice of Claim is delivered to the Seller Representative(or, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquirorwhere circumstances require, such approval not to be unreasonably withheld, conditioned or delayedshorter time as the Purchaser Indemnitee may reasonably specify as being required under the circumstances) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent after receipt of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense notice of a Third Party Claim if (1) from a Purchaser Indemnitee, the Indemnifying Persons fail to actively and diligently conduct Sellers Representative or the defense individual Seller, as the case may be, may notify such Purchaser Indemnitee of the Third Party Claim (after notice and reasonable opportunity indemnifying Sellers’ or Seller’s election to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with assume the defense of such Third Party Claim, in which case the indemnifying Sellers or Seller shall have the authority to negotiate, compromise and settle such Third Party Claim, if the following conditions are satisfied:
(3a) the Sellers Representative or the individual Seller, as the case may be, shall have confirmed in writing that as between the Purchaser Indemnitees and the indemnifying Seller or Sellers, such indemnifying Seller or Sellers shall be solely obligated to satisfy and discharge such claim;
(b) if requested by the Purchaser Indemnitees, the indemnifying Seller or Sellers shall have delivered to Purchaser financial statements of the indemnifying Seller or Sellers evidencing, in the reasonable determination of Purchaser, such Seller’s or Sellers’ financial ability, together with monies in the Escrow Account (taking into account the reasonable amount anticipated to be paid in satisfaction of any pending claim) to satisfy the full amount of any adverse monetary judgment that may result from such Third Party Claim;
(c) the Purchaser Indemnitees shall not have given the Sellers Representative or the individual Seller, as the case may be, written notice that it has determined, in the exercise of its reasonable discretion, that a conflict of interest makes separate representation by the Purchaser Indemnitee’s own counsel advisable; and
(d) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, claim involves (4and continues to involve) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would solely monetary damages and shall not be not be fully indemnified hereunder.
likely in the Purchaser Indemnitee’s reasonable judgment to have a material adverse effect on any of the Purchaser Indemnitees or, in any of the Purchaser Indemnitees’ good faith judgment, to have a detrimental effect on the business prospects of such Purchaser Indemnitee. (bSections 9.3 (a) In -(d), collectively, the event that “Litigation Conditions”). If the Indemnifying Persons defend indemnifying Sellers, in the Acquiror Indemnified Persons against case of a Third Party Claim, or the Acquiror Indemnified Persons shall cooperate in all reasonable respectsindemnifying Seller, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigationcase of a Third Party Claim which is an Individual Seller Claim, trial elect to assume the defense of such Third Party Claim, such indemnifying Sellers or Seller shall be entitled at their own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of their own choosing (which counsel shall be reasonably satisfactory to the Purchaser); provided that the Purchaser may participate in the defense of such Third Party Claim and with its own counsel at its own expense; and, provided, further, that the indemnifying Seller or Sellers may not settle any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against Claim without the third party claimant, or any cross complaint against any Person, in each case, at the expense consent of the Indemnifying PersonsPurchaser, which consent shall not be unreasonably withheld or delayed. The Acquiror Indemnified Persons mayIf the Sellers Representative or the individual Seller, at their own as the case may be, does not assume sole cost and expense, monitor and further participate in (but not control) control over the investigation, trial and defense or settlement of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Purchaser’s notice of a Third Party Claim, then or, after assuming such control, fails to diligently defend against such Third Party Claim in good faith (it being agreed that settlement of such Third Party Claim does not constitute such a failure to defend) or any Litigation Condition ceases to be met, the Acquiror Indemnified Persons Purchaser Indemnitees shall have the right (as to retain separate counsel of their choosingitself) to defend and settle the claim in such manner as it may deem reasonably appropriate, defend and the Sellers Representative or the individual Seller, as the case may be, shall promptly reimburse the Purchaser Indemnitees therefore (to the extent such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled subject to indemnification hereunderunder Section 9.2); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (a) In the event that an Indemnified Party becomes aware of Claim given by Acquiror, which involves a third third-party claim (a “Third Third-Party Claim”) that the Indemnified Party reasonably believes may result in a demand against the Right of Setoff or the Escrow Fund or for other indemnification pursuant to this Article VI, Buyer shall promptly notify the Sellers’ Representative and the Escrow Agent, if the Escrow Fund has not ceased to exist, of such claim (a “Claim Notice”); provided, however, that no delay or failure on the part of an Indemnified Party in delivering any Claim Notice shall be resolved as follows:relieve the Sellers from any liability hereunder except and to the extent the Sellers have been actually prejudiced by such delay or failure.
(ab) IfBuyer may, at its election, undertake and conduct the defense of such Third-Party Claim upon written notice of such election to the Sellers’ Representative within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf delivery of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons . The Sellers’ Representative shall have the rightbe entitled to participate in, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdetermine or conduct, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Third-Party Claim, (3) unless such Third Party Claim seeks a finding or admission participation would affect any privilege of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies Buyer in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Third-Party Claim; provided, the Acquiror Indemnified Persons shall cooperate in all reasonable respectshowever, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons that Buyer shall have the right in its reasonable discretion to retain separate counsel of their choosingsettle any such claim; provided, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined further, that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without except with the prior written consent of the Indemnifying Persons, Sellers’ Representative (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), no settlement of any such Third-Party Claim with third-party claimants shall be determinative of any Losses relating to such matter.
(c) If Buyer does not so elect to undertake and conduct the defense of such Third-Party Claim, the Sellers’ Representative may undertake the defense of and use all reasonable efforts to defend such claim and shall consult with Buyer regarding the strategy for defense of such claim, including with respect to the Sellers’ Representative choice of legal counsel; provided, however, that the Sellers’ Representative shall have the right in their reasonable discretion to settle any such claim; provided, further, that except with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), no settlement of any such Third-Party Claim with third-party claimants shall be determinative of any Losses relating to such matter. Notwithstanding the foregoing, in the event that (i) the control of the defense by the Sellers’ Representative would be inappropriate due to a conflict of interest or because the Indemnified Party has been advised by counsel that in such counsel’s opinion it has claims or defenses that are unavailable to the Sellers which the Sellers’ Representative is unable or unwilling to assert, (ii) such Third-Party Claim (or the facts or allegations related to such Third-Party Claim) involves criminal allegations or seeks equitable or injunctive relief, or (iii) the Sellers’ Representative fail at any time to conduct the defense of such proceeding, claim or demand in a reasonably active and diligent manner, then Buyer shall have the right to assume the control of such defense. Until the Sellers’ Representative assumes the defense of any such Third-Party Claim, the Indemnified Party may defend against such Third-Party Claim in any manner the Indemnified Party reasonably deems appropriate at cost and expense of the Sellers if the Sellers are liable for indemnification hereunder. Notwithstanding any other provision of this Article VI, the Sellers’ Representative shall not enter into any compromise, settlement agreement or consent decree with respect to any such Third-Party Claim without the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned) unless such compromise, settlement agreement or consent decree (x) provides solely for the payment of money in an amount that is less than the amount of the Escrow Amount then remaining in the Escrow Fund, (y) contains a complete and unconditional release by the third party asserting the Third-Party Claim of the Indemnified Party and (z) does not contain any direct or indirect requirements upon or provisions for or impose any obligations on the Indemnified Party.
(d) The Acquiror Indemnified Persons party controlling the defense of a Third-Party Claim (the “Controlling Party”) shall (i) keep the other party (the “Non-controlling Party”) advised of the status of such claim and the Indemnifying Persons defense thereof (including all material developments and events relating thereto) and shall use commercially reasonable efforts consider in good faith recommendations made by the Non-controlling Party with respect thereto and (ii) make available to avoid production the Non-controlling Party any documents or materials in its possession or control that may be necessary to understand the defense of confidential information such claim (consistent with Law), and subject to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable protection of the attorney-client privilege). If requested by the Controlling Party, 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, complaints or workother pleadings 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 reasonably cooperate with and assist the Controlling Party in the defense of such Third-product privilegesParty Claim.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nabriva Therapeutics PLC)
Third Party Claims. Each Notice (a) In the event that Acquirer becomes aware of Claim given a potential claim by Acquiror, which involves a third party (a “Third "Third-Party Claim”)") that Acquirer believes may result in a claim for Indemnifiable Damages by or on behalf of an Acquirer Indemnified Person, Acquirer shall be resolved provide written notice to Seller setting forth the specific facts and circumstances, in reasonable detail, relating to such Indemnifiable Damages, the amount of Indemnifiable Damages (or a non-binding, reasonable estimate thereof if the actual amount is not known or not capable of reasonable calculation) and the specific Section(s) of this Agreement upon which the Acquirer Indemnified Person may rely in seeking such indemnification relating to the Third-Party Claim as follows:
(a) Ifsoon as possible after the Acquirer Indemnified Person's receipt of notice of the Third-Party Claim, within but in no event later than thirty (30) days thereafter and in no event more than five (5) Business Days after a Notice being served with any summons, complaint or similar legal process. Thereafter, the Acquirer Indemnified Person shall deliver to Seller, within five (5) Business Days after the Acquirer Indemnified Person's receipt thereof, copies of Claim is delivered all notices and documents, including all court papers, received by the Acquirer Indemnified Person relating to the Third-Party Claim. An Acquirer Indemnified Person's failure to provide such written notices within the time period specified above shall not relieve Seller Representativefrom its indemnification obligations with respect to such Third-Party Claim, (x) except to the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that extent the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with Party is prejudiced as a result of such Third Party Claim Notice, the Indemnifying Persons failure.
(b) Seller shall have the right, but not the obligation right in its sole discretion to (i) take control participate in the defense of any Third-Party Claim and (ii) upon written notice to Acquirer, conduct the defense of any Third-Party Claim that (x) seeks monetary damages not greater than one hundred fifty percent (150%) of the amount Seller would be responsible to indemnify hereunder or (y) solely involves Pre-Closing Taxes (provided that Seller may not elect to conduct the defense of any Third Party Claim where (1) the reasonably possible potential liability of the Company and/or Acquirer thereunder exceeds the maximum amount which may be paid thereto pursuant to the Acquirer Insurance Policy, if obtained, the Escrow General Fund and investigation the Escrow Fundamental Fund, (2) the Third Party Claim involves criminal allegations and/or (3) where material non-monetary relief is sought against the Company and/or Acquirer). If Seller elects to assume the defense of such Third a Third-Party Claim, then Seller shall not be liable to Acquirer Indemnified Persons for legal expenses subsequently incurred by Acquirer Indemnified Persons in connection with the defense of the Third-Party Claim, so long as Seller diligently conducts the defense. Seller (iiif it chooses not to assume the defense of the Third-Party Claim) employ or Acquirer (if Seller assumes the defense of the Third-Party Claim) shall have the right to receive copies of all pleadings, notices and engage attorneys communications with respect to such Third-Party Claim to the extent that receipt of their own choice (such documents does not affect any applicable privilege, subject to execution by such party of the approval of Acquirorother party's (and, if required, such approval third party's) standard non-disclosure agreement to the extent that such materials contain confidential or propriety information. Seller (if it chooses not to assume the defense of the Third-Party Claim) or Acquirer (if Seller assumes the defense of the Third-Party Claim) shall each be entitled, at its own expense, to participate in, but not to determine or conduct, any defense of the Third-Party Claim or settlement negotiations with respect to the Third-Party Claim; provided, that no compromise or settlement of such Third-Party Claim may be effected by the party controlling the defense of such Third-Party Claim without the other party's consent unless (A) there is no finding or admission of any violation by such other party of any Applicable Law or any rights of any Person, (B) such other party receives a full release of and from any other claims that may be made against such other party by the third party bringing the Third-Party Claim, and (C) the sole relief provided is monetary damages that are paid in full by compromising or settling party; provided, further that for clarity, if indemnification is to be sought hereunder, Acquirer may not enter into any compromise or settlement of such Third-Party Claim without the Indemnifying Party's prior written consent (not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Share Purchase Agreement (Sapiens International Corp N V)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfIn the event of the assertion of any third party Claim by an Indemnitee, within thirty (30) days after a Notice the Indemnitor will have the right, at such Indemnitor’s expense, to assume the defense of Claim is delivered to same including the Seller Representative, (x) the Seller Representative produces a notice appointment and selection of election and (y) such notice of election includes a written acknowledgment from the Seller Representative counsel on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with Indemnitee so long as such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject counsel is reasonably acceptable to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullIndemnitee. Notwithstanding the foregoing, the Indemnifying Persons shall not Indemnitor will continue to be entitled to assert any limitation on any Claims contained in this Article XI. Subject to Section 11.05(c), 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 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; 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 (x) the Indemnitee’s outside counsel shall have reasonably concluded and advised in writing (with a copy to the Indemnitor) that there are defenses available to such Indemnitee that are different from or additional to those available to the Indemnitor or (y) the Indemnitee’s outside counsel shall have advised in writing (with a copy to the Indemnitor) that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel for the Indemnitee and the Indemnitor; provided, further, that, for the avoidance of doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the other terms of this Section 11.05. Notwithstanding the foregoing, the Indemnitee will have the right to defend any such Claim until such time as the Indemnitor agrees to assume the defense of a Third Party Claim if (1) such Claim, and any costs or expenses incurred by the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons Indemnitee in connection with therewith will be Losses hereunder and indemnifiable to the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates extent it is finally determined that the Indemnitee is entitled to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely indemnification pursuant to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunderXI with respect to such Claim.
(b) In If the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Indemnitor fails to use commercially reasonable efforts to diligently prosecute such Claim, the Acquiror Indemnified Persons Indemnitee may assume control of such defense and in the event it is finally determined by a court of competent jurisdiction that the Claim was a matter for which the Indemnitor is responsible under the terms of this Agreement, the Indemnitor will bear the reasonable costs and expenses of such defense (including fees and expenses of counsel). If the Indemnitee assumes the control of such defense, then the Indemnitor shall cooperate in all reasonable respectsbe entitled, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own its sole cost option and expense, monitor and further to participate in (but not control) the investigation, trial and defense any prosecution of such Third Party Claim and or any appeal arising therefromsettlement negotiations with respect to such Claim.
(c) Notwithstanding anything to the contrary hereinin this Agreement, if the Indemnifying Persons do Indemnitor will not assume such defense and investigation be 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 Indemnitee to any criminal liability, requires an admission of guilt or wrongdoing on the part of the Indemnitee or imposes any continuing obligation on, or requires any payment from the Indemnitee or (ii) settle or compromise any third party claim that does not acknowledge fully and unconditionally release the Indemnified Party, in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimeach case, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the Indemnitee’s prior written consent of the Indemnifying Personsconsent, which consent shall will not be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) . Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingswhether or not the Indemnitor will have assumed the defense of a third-party Claim, the Indemnitee will not admit any liability with respect to, or settle, compromise or discharge, any third-party Claim without the prior written consent of the Indemnitor.
Appears in 1 contract
Sources: Contribution Agreement (Energy Transfer Partners, L.P.)
Third Party Claims. Each Notice In the event that Legal Proceedings shall be instituted, or that any claim shall be asserted, by any Person not party to this Agreement in respect of Claim given by Acquiror, which involves a third party an Indemnifiable Matter (a “Third Party Claim”), an Indemnified Party shall be resolved promptly notify the Stockholders’ Representative of any such claim to which it has knowledge; provided, however, that no delay on the part of the Indemnified Party in giving any such notice shall relieve the Indemnifying Parties of any indemnification obligations, except to the extent that such Indemnifying Party shall have demonstrated that it has been actually prejudiced as follows:
a result of such failure. Upon written notice to the Indemnified Party given within ten (a) If, within thirty (3010) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Third Party Claim, the Stockholders’ Representative shall be entitled on behalf of the Seller Guarantors Indemnifying Parties, at their sole cost and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required expense, to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take assume and control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to with counsel approved by the approval of AcquirorIndemnified Party, such approval not to be unreasonably withheld, conditioned conditioned, or delayed, if (i) the Stockholders’ Representative acknowledges to handle and defend the same, at Indemnified Party in writing of the Indemnifying PersonsParties’ sole cost obligations to indemnify the Indemnified Party pursuant to this Article VIII with respect to all elements of such claim, (ii) there does not exist, in the good faith judgment of the Indemnified Party, an actual conflict of interest between the interests of the Indemnified Party and expensethe interests of any Indemnifying Parties, and (iii) compromise the third party seeks monetary damages only, (iv) an adverse resolution of the Third Party Claim would not, in the good faith judgment of the Indemnified Party, have an adverse effect on (A) the goodwill or settle the reputation of the Indemnified Party of any of the Affiliates of such Indemnified Party or (B) the future conduct of any of the business of the Indemnified Party or any of the Affiliates of such Indemnified Party and (v) the maximum monetary liability under such Third Party Claim, as determined in good faith by the Indemnified Party, is less than or equal to two times the then-remaining amount of the Indemnification Escrow Fund, after taking into account the amount of all other claims for which compromise the Indemnifying Parties may be or may reasonably be expected to be claimed to be liable. If the Stockholders’ Representative so assumes the defense of a Third Party Claim, the Indemnified Party shall be entitled to participate in (but not control) such defense, with its own counsel and at its own expense (except that the Indemnifying Party will be responsible for the actual fees and expenses of separate co-counsel to the extent there is an actual conflict between the interests of the Indemnified Party and any of the Indemnifying Parties). In addition, if the Stockholders’ Representative so assumes the defense of a Third Party Claim, he or she shall diligently take all steps necessary in the defense or settlement thereof. The Stockholders’ Representative shall be made only with not, without the prior written consent of Acquiror; providedthe Indemnified Party, that such consent will not to be required if unreasonably withheld, conditioned or delayed, consent to any settlement or to the entry of any judgment with respect to any Third Party Claim unless such settlement or entry of judgment (i) includes an only the payment of monetary damages (which are fully paid by the Indemnifying Party), (ii) does not impose any injunctive or equitable relief upon the Indemnified Party, (iii) does not require any admission or acknowledgement of liability or fault of the Indemnified Party, and (iv) includes a complete and unconditional release of the Acquiror Indemnified Persons and provides solely for payment Party from all liability with respect to such Third Party Claim. In addition, the Stockholders’ Representative may not admit any liability of monetary damages for which any Indemnified Party or waive any Indemnified Party’s rights without the Acquiror prior written consent of the Indemnified Persons will be indemnified Party. If a Third Party Claim results in full. Notwithstanding the foregoinga judgment or settlement, the Indemnifying Persons Parties shall promptly pay such judgment or settlement. If the Stockholders’ Representative (i) fails to (or is not have permitted under the right to terms hereof to) assume the defense of a Third Party Claim if Claim, or (1ii) in the good faith judgment of the Indemnified Party, fails to diligently prosecute such defense, then the Indemnified Party may defend against the Third Party Claim, at the Indemnifying Persons fail to actively Parties’ sole cost, risk and diligently conduct expense, in such manner as the defense of Indemnified Party may deem appropriate, including, without limitation, settling the Third Party Claim (after notice and reasonable opportunity to cure)on such terms as the Indemnified Party may deem appropriate; provided, (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claimhowever, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying PersonsStockholders’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related Representative will be entitled to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third action, with its counsel and at its own expense; provided, further, the Indemnified Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to shall not, without the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt prior written consent of the Third Stockholders’ Representative, such consent not to be unreasonably withheld, conditioned or delayed, enter into any such settlement. The Indemnified Party Claim Notice its obligation and the Stockholders’ Representative agree to indemnify the Acquiror Indemnified Persons against any Damages arising from make reasonably available to each other, their counsel and other representatives, all information and documents available to them which relate to such Third Party Claim, then subject to attorney-client privilege. The Indemnified Party and the Acquiror Indemnified Persons shall have Stockholders’ Representative also agree to render to each other such reasonable assistance and cooperation as may reasonably be required to ensure the right to retain separate counsel of their choosing, defend such Third Party Claim proper and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the adequate defense of such Third Party Claim, and the Acquiror Indemnified Persons Party and the Stockholders’ Representative shall not settle, compromise or pay promptly notify the other party in writing of any and all significant developments relating to any such Third Party Claim for which they seeks indemnification hereunder without Claims. The costs incurred by the prior written consent Stockholders’ Representative pursuant to defending or participating in the defense of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privilegesClaims shall constitute Stockholders’ Representative Expenses.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfSubject to paragraph (b) of this Section 9.4, within thirty the persons indemnified under this Article 9 shall have the right to conduct and control, through counsel (30but no more than one law firm) of their choosing, any third party claim, action or suit, and the persons indemnified may compromise or settle the same, provided that any of the indemnified persons shall give the indemnifying party advance notice of any proposed compromise or settlement. The indemnified persons shall permit the indemnifying party to participate in the defense of any such action or suit through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the indemnifying party. Any compromise or settlement with respect to a claim for money damages effected after the indemnifying party by notice to the indemnified party shall have disapproved such compromise or settlement shall discharge the indemnifying party from liability with respect to the subject matter thereof, and no amount in respect thereof shall be claimed as Loss or Expense under this Article 9; provided, however, that if the indemnifying party has not elected to conduct and control an action or suit subject to paragraph (b) of this Section 9.4, such indemnifying party shall have no right to disapprove such compromise or settlement or to be discharged from liability with respect to the subject matter thereof.
(b) If the remedy sought in any action or suit referred to in paragraph (a) of this Section 9.4 is solely money damages and will have no continuing effect on the business of any indemnified person, the indemnifying party shall have 5 business days after a Notice receipt of Claim is delivered the notice referred to in the last sentence of Section 9.3 to notify the indemnified persons that it elects to conduct and control such action or suit. If the indemnifying party does not give the foregoing notice, the indemnified persons shall have the right to defend, contest, settle or compromise such action or suit in the exercise of their exclusive discretion, and the indemnifying party shall, upon request from any of the indemnified persons, promptly pay to such indemnified persons in accordance with the other terms of this Article 9 the amount of any Loss resulting from its liability to the Seller Representativethird party claimant and all related Expense. If the indemnifying party gives the foregoing notice, the indemnifying party shall have the right to undertake, conduct and control, through counsel of its own choosing and at the sole expense of the indemnifying party, the conduct and settlement of such action or suit, and the indemnified persons shall cooperate with the indemnifying party in connection therewith; provided that (x) the Seller Representative produces a notice indemnifying party shall not thereby permit to exist any Encumbrance or other adverse charge upon any asset of election and any indemnified person; (y) the indemnifying party shall permit the indemnified persons to participate in such notice conduct or settlement through counsel chosen by the indemnified persons, but the fees and expenses of election includes a written acknowledgment such counsel shall be borne by the indemnified persons except as provided in clause (z) below; and (z) the indemnifying party shall agree promptly to reimburse to the extent required under this Article 9 the indemnified persons for the full amount of any Loss resulting from such action or suit and all related Expense incurred by the Seller Representative on behalf indemnified persons, except fees and expenses of counsel for the indemnified persons incurred after the assumption of the Seller Guarantors conduct and control of such action or suit by the Sellers (indemnifying party. So long as the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages indemnifying party is contesting any such action or suit in connection with such Third Party Claim Noticegood faith, the Indemnifying Persons indemnified persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise pay or settle any such Third Party Claim, which compromise action or settlement shall be made only with suit without the express prior written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullindemnifying party. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons persons shall have the right to retain separate counsel of their choosingpay or settle any such action or suit, defend provided that in such Third Party Claim and have event the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ indemnified persons shall waive any right to indemnification for a Third Party Claim shall not be adversely affected indemnity therefor by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Law)indemnifying party, and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to no amount in respect thereof shall be made so claimed as to preserve any applicable attorney-client Loss or work-product privilegesExpense under this Article 9.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice If Holdings or Numonyx becomes aware of Claim given by Acquiror, which involves a claim of a third party (including for all purposes of this Section 6.4, any Governmental Authority) that Holdings or Numonyx believes, in good faith, may result in a “Third Party Claim”)claim by it or any other Holdings Indemnitee against Intel, Holdings or Numonyx shall be resolved notify Intel of such claim as follows:
(a) Ifpromptly as practicable; provided, within thirty (30) days after a Notice that any failure to so notify Intel shall not relieve Intel of Claim is delivered its obligations hereunder, except to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) extent such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons failure shall have materially adversely prejudiced Intel. Intel shall have the right, but not the obligation duty, to (i) take assume and conduct the defense of such claim at its expense; provided, however, that Intel may not assume control of the defense of a suit or proceeding involving criminal liability. Intel shall conduct such defense in a commercially reasonable manner, and investigation shall be authorized to settle any such claim without the consent of any Holdings Indemnitee, provided, however, that: (a) Intel shall not be authorized to encumber any assets of any Holdings Indemnitee or agree to any restriction that would apply to any Holdings Indemnitee or the conduct of any Holdings Indemnitee’s business; (b) Intel shall have paid or caused to be paid any amounts arising out of such Third Party Claim, settlement; (iic) employ and engage attorneys of their own choice (subject a condition to the approval of Acquiror, any such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be a complete release of Holdings and any other Holdings Indemnitee against whom such claim has been made only with respect to such third party claim; and (d) Intel shall not be authorized to settle any claim that would reasonably be expected to have a material effect on a Tax liability of Holdings or Numonyx, as the written case may be, that is not subject to indemnification by Intel hereunder without the consent of Acquiror; providedHoldings or Numonyx, that such as the case may be, which consent will shall not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages unreasonably withheld or delayed. With respect to any claim for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume Intel assumes the defense of a Third Party Claim if (1) the Indemnifying Persons fail Holdings or Numonyx, Holdings or Numonyx, as applicable, shall be entitled to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim third party claim, with its own counsel and at its own expense, and Holdings or Numonyx, as the case may be, shall take such action as Intel shall reasonably request to assist Intel in the defense of any appeal arising therefrom.
(c) Notwithstanding anything such third party claim, provided that Intel shall reimburse Holdings or Numonyx, as applicable, for any reasonable out-of-pocket expenses incurred in taking any such requested action. If Intel does not assume the defense of any third party claim in accordance with the provisions hereof, Holdings and Numonyx may defend such third party claim in a commercially reasonable manner and may settle such third party claim after giving written notice of the terms thereof to Intel, and such legal expenses shall be indemnifiable Losses hereunder to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation extent that Holdings or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation Numonyx is determined to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are be entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification hereunder for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedthird party claim.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice If any Indemnitee receives notice of Claim given the assertion of any claim or of the commencement of any action or proceeding by Acquirorany entity that is not either a Surviving Corporation Indemnitee or a Verizon Indemnitee (each, which involves a third party (a “Third Party Claim”)) against such Indemnitee, shall be resolved as follows:
(a) Ifwith respect to which an Indemnitor is obligated to provide indemnification under this Agreement, within thirty (30) the Indemnitee will give such Indemnitor prompt written notice thereof, but in any event not later than ten calendar days after a Notice receipt of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim; provided, (ii) employ and engage attorneys however, that the failure of their own choice (subject 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 approval extent that the Indemnitor is materially prejudiced by such failure or delay (whether as a result of Acquiror, such approval not to be unreasonably withheld, conditioned the forfeiture of substantive rights or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise defenses or settle such otherwise). Upon receipt of notification of a Third Party Claim, which compromise or settlement the Indemnitor shall be made only 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 written consent of AcquirorIndemnitee; provided, however, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons Indemnitor shall not have the right to assume the defense of a any Third Party Claim if 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 “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 the Indemnitee shall pay the fees and disbursements of such separate counsel unless (1) the Indemnifying Persons fail to actively and diligently conduct employment of such separate counsel has been specifically authorized in writing by the defense of the Third Party Claim (after notice and reasonable opportunity to cure), Indemnitor; (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with Indemnitor has failed to assume the defense of such Third Party Claim, Claim within 20 calendar days after receipt of notice thereof with counsel reasonably satisfactory to such Indemnitee; or (3) the named parties to the proceeding in which such Third Party Claim seeks a finding has been asserted include both the Indemnitor and such Indemnitee and, in the reasonable judgment of counsel to such Indemnitee, there exists one or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction more good faith defenses that may be available to the Indemnitee that are in conflict with those available to the Indemnitor or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, Indemnitor and Indemnitee have actual material conflicting interests with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related respect to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claimforegoing, the Acquiror Indemnified Persons Indemnitor shall not settle, compromise be liable for the fees and disbursements of more than one counsel for all Indemnitees in connection with any one proceeding or pay such Third Party Claim for which they seeks indemnification hereunder without any similar or related proceedings arising from the same general allegations or circumstances. Without the prior written consent of the Indemnifying Personsan Indemnitee, which consent 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 (di) The Acquiror Indemnified Persons would lead to liability or create any financial or other obligation on the part of the Indemnitee, (ii) does not contain, as an unconditional term thereof, the release of the Indemnitee from all liability in respect of such Third Party Claim or such Third Party Claim is not dismissed against the Indemnitee with prejudice and without the Indemnifying Persons shall use commercially reasonable efforts 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 avoid production of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party 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 made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything limited to the contrary 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 Claim and the defense thereof and shall consider in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsgood faith all reasonable recommendations made by the other party with respect thereto.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
i) The Shareholders’ Representative (a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Company Indemnifying Persons”Person) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume conduct at the Company Indemnifying Person’s expense the defense of a Third Party Claim if with counsel reasonably satisfactory to the Buyer Indemnified Person, upon delivery of notice to the applicable Buyer Indemnified Person (1the “Defense Notice”) within ten (10) days after the Indemnifying Persons fail Shareholders’ Representative’s receipt of the Claim Notice; provided that the Defense Notice shall specify the counsel the Shareholders’ Representative will appoint to actively defend such Third Party Claim and diligently acknowledge the right of such Buyer Indemnified Person to be indemnified for Losses incurred in connection with such Third Party Claim. The applicable Buyer Indemnified Person shall be entitled to be indemnified for the reasonable fees and expenses of counsel for any period during which the Shareholders’ Representative has not assumed the defense of any such Third Party Claim in accordance herewith to the extent such fees and expenses constitute Losses subject to indemnification hereunder. If the Shareholders’ Representative delivers a Defense Notice and thereby elects to conduct the defense of the Third Party Claim (after notice Claim, such Buyer Indemnified Person will cooperate with and reasonable opportunity make available to cure)the Shareholders’ Representative such assistance and materials as the Shareholders’ Representative may reasonably request, (2) all at the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between sole expense of the Acquiror Indemnified Persons Company Indemnifying Persons, and the Indemnifying Persons Buyer Indemnified Person shall have the right at its expense to participate in connection with the defense assisted by counsel of its own choosing.
(ii) The Shareholders’ Representative shall not be entitled to control the defense of any Third Party Claim if (i) such Indemnity Claim is with respect to an Action (A) by a Governmental Entity, (B) regarding material Company Intellectual Property, or (C) that could result in a Material Adverse Effect on the Surviving Corporation, (ii) the applicable Buyer Indemnified Person has been advised by counsel that a reasonable likelihood exists of a material conflict of interest between the Company Indemnifying Persons and such Buyer Indemnified Person with respect to such Third Party Claim, (3iii) the Shareholders’ Representative has failed to deliver the Defense Notice or is failing to adequately prosecute or defend such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified PersonClaim, (4iv) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror relief against such Buyer Indemnified Person or its business, (5v) the amount of such Third Party Indemnity Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) exceeds the Indemnity Cap Amount. In the event that of any of the Indemnifying Persons defend foregoing circumstances and the Acquiror Buyer Indemnified Persons against Person has nonetheless permitted the Shareholders’ Representative to control the defense of a Third Party Claim, the Acquiror Buyer Indemnified Persons Person shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related be entitled to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseretain its own counsel, at the expense of the Company Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(ciii) Notwithstanding anything to the contrary hereinThe Shareholders’ Representative shall not, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Personsapplicable Buyer Indemnified Person: (A) settle or compromise a Third Party Claim or consent to the entry of any Action which does not include an unconditional, duly authorized, fully executed and acknowledged (by a duly registered notary public) written release by the claimant or plaintiff of such Buyer Indemnified Person from all liability in respect of the Third Party Claim; (B) settle or compromise any Third Party Claim if the settlement imposes equitable remedies or other obligations on such Buyer Indemnified Person; or (C) settle or compromise any Third Party Claim if the result is to admit civil or criminal liability or culpability on the part of such Buyer Indemnified Person that could give rise to criminal liability with respect to such Buyer Indemnified Person. No Third Party Claim which is being defended by the Shareholders’ Representative in accordance with the terms of this Agreement shall be settled or compromised by such Buyer Indemnified Person without the prior written consent shall of the Shareholders’ Representative (such consent not to be unreasonably withheld, conditioned or delayed).
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given not later than 30 days after receipt of Claim given by Acquirorthe Indemnification Notice, which involves a third party (a “to assume control of the defence, compromise or settlement of the Third Party Claim”), shall be resolved as followsClaim provided that:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeinvolves only money damages and does not seek any injunctive or other equitable relief;
(b) if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by the same counsel would, in the reasonable judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences);
(c) settlement of, or an adverse judgment with respect to, the Indemnifying Persons shall have Third Party Claim would not, in the right, but not the obligation to (i) take control reasonable judgment of the defense Indemnitee, establish a precedent, custom or practice materially adverse to the continuing business interest of the Indemnitee.
(2) On the assumption of control by the Indemnitor:
(a) the Indemnitor will actively and investigation diligently proceed with the defence, compromise or settlement of such the Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, Claim at the Indemnifying Persons’ Indemnitor's sole cost and expense, and including the retaining of counsel reasonably satisfactory to the Indemnitee's Representative;
(iiib) compromise or settle such Third Party Claimthe Indemnitor will keep the Indemnitee's Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim;
(c) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and
(d) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitee's Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 8.7(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 8.7(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitee's Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expenseuse its best efforts to make available to the Indemnitor all relevant information in its possession or under its control (provided that it does not cause the Indemnitee or its Indemnitee's Representative to breach any confidentiality obligations) and will take such other steps as are, monitor and further participate in (but not control) the investigationreasonable opinion of counsel for the Indemnitor, trial and defense of such Third Party Claim and any appeal arising therefrom.necessary to enable the Indemnitor to conduct that defence, provided always that:
(ca) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation no admission of fault may be made by or does not acknowledge in writing within thirty (30) days after receipt on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser;
(b) no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent of the Vendor; and
(c) the Indemnitee and its Indemnitee's Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee's legal counsel, would be unreasonably withheld, conditioned or delayedmaterially prejudicial to the Indemnitee.
(d4) The Acquiror Indemnified Persons and If (i) the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with LawIndemnitor does not give the relevant Indemnitee's Representative the notice provided in Section 8.7(1), and to cause all communications among employees(ii) any of the conditions in Section 8.7(1) are unsatisfied, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.or
Appears in 1 contract
Sources: Share Purchase Agreement
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.Acquiror
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice In the event that an Indemnified Party becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which such Indemnified Party reasonably believes may result in an indemnification claim pursuant to this Article VIII, such Indemnified Party shall be resolved as follows:
notify the Shareholder Representative (aor, in the event indemnification is being sought hereunder directly from a Seller, such Seller) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim; provided, (ii) employ and engage attorneys of their own choice (subject however, that the failure to give prompt notice shall not affect the indemnification provided hereunder except to the approval extent the Shareholder Representative, on behalf of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost , has been actually and expensematerially prejudiced as a result of such failure. The Shareholder Representative shall, within ten (10) Business Days of receipt of such notice, notify such Indemnified Party whether the Shareholder Representative desires to undertake and (iii) compromise or settle conduct the defense of such Third Party Claim, which compromise or settlement shall be made only with Claim (provided that the written consent of Acquiror; provided, that such consent will Shareholder Representative may not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim (i) unless the then remaining amount of the Escrow Fund (together with the remaining amounts in the Shareholder Representative Expense Fund) would be sufficient to satisfy all indemnification obligations that could reasonably be expected to become payable in respect of the 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, (1ii) 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 Indemnifying Persons fail litigation or outcome of such Third Party Claim would reasonably be expected to actively 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 of a Third Party Claim, notwithstanding any 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 Third Party Claim (and, for the avoidance of doubt, without regard to any of the limitations provided for in this Article VIII) and diligently conduct the Shareholder Representative shall take all actions necessary or appropriate to defend against the Third Party Claim. Parent or Purchaser may, at its own expense, participate in the defense of any such Third Party Claim assumed by the Shareholder Representative. In the event any Indemnified Party 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 Shareholder Representative, such Indemnified Party or Parties shall be entitled to select separate counsel to act on its behalf and the 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 positions of Parent and the Shareholder Representative, or any of the conditions in clauses (i) through (iv) above is satisfied, then Parent or Purchaser shall have the right to assume the control of the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate Shareholder Representative may not settle any matter (in (but not controlwhole or in part) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsParent or Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed.
delayed (dprovided that Parent or Purchaser may withhold consent to any settlement in its discretion unless such settlement (A) The Acquiror includes a complete and unconditional release of Parent, Purchaser and/or the Indemnified Persons Parties, (B) excludes any injunctive or non-monetary relief applicable to the Indemnified Parties, and the Indemnifying Persons shall use commercially reasonable efforts to avoid production (C) excludes any finding or admission of confidential information (consistent with Lawfault, liability or any violation of law), and which consent shall be deemed to cause all communications among employeeshave been given unless Parent or Purchaser shall have objected within twenty (20) days after a written request for such consent by the Shareholder Representative. If the Shareholder Representative does not elect to defend against such Third Party Claim in accordance with this Section 8.6, counsel then the Shareholder Representative, on behalf of the Sellers, shall be entitled to participate in any defense of such Third Party Claim, at its expense and others representing 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 party 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 made so as deemed Losses hereunder, provided however, that the foregoing shall not impact the ability of the Shareholder Representative to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything object to the contrary 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 AgreementArticle VIII to the amount of any Third Party Claim by Purchaser against the Escrow Fund, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsor 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. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify undertake, conduct and control, through counsel satisfactory to Purchaser, and at Seller's expense, the Acquiror Indemnified Persons against any Damages arising from such settlement or defense of a Third Party Claim, then and Purchaser shall cooperate with Seller in connection therewith, provided that (i) Seller shall permit Purchaser to participate in such settlement or defense through counsel chosen by Purchaser, provided that the Acquiror Indemnified Persons fees and expenses of such counsel shall have the right to retain separate counsel of their choosingnot be borne by Seller, defend and (ii) Seller shall not settle any Third Party Claim without Purchaser's consent. So long as Seller is vigorously contesting any such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim in good faith, Purchaser shall not be adversely affected by assuming the defense of pay or settle such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder claim without the prior written consent of the Indemnifying PersonsSeller's consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, conditioned or delayedif Seller assumes control of such defense, and there exists a conflict of interest between the interests of Seller and those of Purchaser with respect to such Third Party Claim, Purchaser may retain counsel satisfactory to it and the reasonable fees and expenses of such counsel to Purchaser shall be paid by Seller.
(db) The Acquiror Indemnified Persons and If Seller does not notify Purchaser within thirty days after receipt of the Indemnifying Persons shall use commercially reasonable efforts Claim Notice that it elects to avoid production undertake the defense of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a the Third Party Claim described therein, Purchaser shall have the right to be made so as to preserve contest, settle or compromise the Third Party Claim in the exercise of its reasonable discretion, on behalf of and for the account and risk of Seller; provided that Purchaser shall notify Seller of any applicable attorney-client compromise or work-product privilegessettlement of any such Third Party Claim.
(ec) Notwithstanding anything Seller shall not be entitled to assume the contrary defense for any Third Party Claim (and shall be liable for the reasonable fees and expenses incurred by Purchaser in this Agreementdefending such claim) if the Third Party Claim seeks an order, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsinjunction or other equitable relief or relief for other than money damages against Purchaser which Purchaser determines, after conferring with its counsel, cannot be separated from any related claim for money damages and which, if successful, would adversely affect the Assets or the Business, properties or prospects of the Business.
Appears in 1 contract
Third Party Claims. Each Notice (a) In the event Parent becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which Parent reasonably believes may result in a demand for indemnification pursuant to this Article V, Parent shall be resolved as follows:
(a) Ifnotify the Company Holder Committee of such claim, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (Company Holder Committee shall have the “Indemnifying Persons”) that right to defend against the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to provided that (i) take control the Company Holder Committee notifies Parent in writing within 15 days after Parent has given notice of the defense Third Party Claim that Indemnifying Parties will indemnify Parent Indemnified Parties from and investigation against the entirety of such any Losses the Parent Indemnified Parties may pay resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim, (ii) employ the Third Party Claim involves only money damages and engage attorneys of their own choice (subject to the approval of Acquiror, such approval does not to be unreasonably withheld, conditioned seek an injunction or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseother equitable relief, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct Company Holder Committee conducts the defense of the Third Party Claim actively and diligently.
(after notice and reasonable opportunity to cureb) So long as the Company Holder Committee is conducting the defense of the Third Party Claim in accordance with Section 5.7(a), the Company Holder Committee will (2A) keep Parent apprised of all material developments, including settlement offers, with respect to the Third Party Claim and permit Parent Indemnified Parties to participate (at their sole cost and expense) in the defense of the Third Party Claim, (B) the Acquiror Indemnifying Parties will not be responsible for any attorney’s fees or other expenses paid or incurred by the Parent Indemnified Persons Parties regarding the Third Party Claim, and (C) the Company Holder Committee shall have received advice from counsel the right to settle such Third Party Claim provided the settlement involves only money damages and does not include an injunction or other equitable relief.
(c) If Parent conducts the defense of any such claim, whether by reason that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with Company Holder Committee chooses not to conduct the defense of such Third Party ClaimClaim or by reason that the Company Holder Committee fails to qualify to conduct such defense in accordance with Section 5.7, Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim; provided, however, that (3i) such except with the consent of the Company Holder Committee, no settlement of any Third Party Claim seeks a finding or admission with third party claimants shall be determinative of a violation the amount of any criminal Law by an Acquiror Losses the Parent Indemnified PersonParties are entitled to recover pursuant to the indemnification provisions of Article V relating to such matter, and (4ii) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, the Company Holder Committee shall be permitted to participate (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with sole cost and expense of the Indemnifying Persons and their attorneys Company Holders) in the investigation, trial and defense of such Third Party Claim and any appeal arising therefromParent will consult with the Company Holder Committee in respect of all material developments and decisions, includingincluding settlement offers, if appropriate and related with respect to such Third Party Claim. In the event that the Company Holder Committee has consented to any such settlement, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but Parties shall not control) the investigation, trial and defense have any power or authority to object under any provision of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything this Article V to the contrary herein, if the Indemnifying Persons do not assume amount of any claim by Parent pursuant to Section 5.7 with respect to such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedsettlement.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (EnteroMedics Inc)
Third Party Claims. Each Notice (i) In order for an Indemnified Person to be entitled to any indemnification provided for under this Agreement in respect of, arising out of Claim given or involving a claim or demand made by Acquiror, which involves a third party any Person against the Indemnified Person (a “Third Third-Party Claim”), such Indemnified Person must provide the Indemnifying Person with a Claim Notice regarding the Third-Party Claim promptly and in any event within ten (10) Business Days after receipt by such Indemnified Person of written notice of the Third-Party Claim; provided that failure to give such notification shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered not affect the indemnification provided hereunder except to the Seller Representative, extent the Indemnifying Person shall have been actually prejudiced as a result of such failure (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) except that the Indemnifying Persons would Person shall not be required liable for any expense incurred during the period in which the Indemnified Person failed to indemnify give such notice). Thereafter, the Acquiror Indemnified Persons for Person shall deliver to the Indemnifying Person, within five Business Days after the Indemnified Person’s receipt thereof, copies of all Damages in connection notices and documents (including court pleadings) received by the Indemnified Person relating to the Third-Party Claim together with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation supporting documents reasonably available to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullPerson. Notwithstanding the foregoing, any Third-Party Claims with respect to Taxes shall be addressed in the manner set forth in Article 11 herein.
(ii) If a Third-Party Claim is made against an Indemnified Person, the Indemnifying Persons Person will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Person. If the Third-Party Claim includes allegations for which the Indemnifying Person both would and would not be obligated to indemnify the Indemnified Person, the Indemnifying Person and the Indemnified Person shall not have in that case jointly assume the right defense thereof. Should the Indemnifying Person so elect to assume the defense of a Third Third-Party Claim if (1) Claim, notwithstanding anything to the contrary, the Indemnifying Persons fail Person will not be liable to actively the Indemnified Person for legal fees and diligently conduct expenses subsequently incurred by the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons Person in connection with the defense of thereof. If the Indemnifying Person assumes such Third Party Claimdefense, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror the Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right right, at its own expense, to retain separate participate in the defense thereof and, at its own expense, to employ counsel of their choosing, defend such Third Party Claim and have the sole power reasonably acceptable to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that Person, separate from the Acquiror Indemnified Persons are entitled to indemnification hereunder); counsel employed by the Indemnifying Person, it being understood that the Acquiror Indemnifying Person shall control such defense. The Indemnifying Person shall be liable for the fees and expenses of counsel employed by the Indemnified Persons’ right Person for any period during which the Indemnifying Person has not assumed the defense thereof (other than during any period in which the Indemnified Person shall have failed to indemnification for a Third give notice of the Third-Party Claim as provided above). For the avoidance of doubt, all legal fees and expenses incurred by the Indemnifying Person shall not be adversely affected by assuming credited against and counted for the purpose of computing the remaining amount available under the Seller Cap for purposes of Section 10.4(e) , and, with respect to any Seller as the Indemnifying Person, such legal fees and expenses shall be paid from the Escrow Fund until so exhausted. If the Indemnifying Person chooses to defend or prosecute any Third-Party Claim, all the Parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Person’s request) the provision to the Indemnifying Person of records and information which are reasonably relevant to such Third Third-Party Claim, and making officers, directors, employees and agents of the Indemnified Person available on a mutually convenient basis to provide information, testimony at depositions, hearings or trials, and such other assistance as may be reasonably requested by the Indemnifying Person. Notwithstanding anything herein to the contrary, whether Whether or not the Indemnifying Persons Person shall have assumed the defense of such Third a Third-Party Claim, the Acquiror Indemnified Persons Person shall not admit any Liability with respect to, or settle, compromise or pay discharge, such Third Third-Party Claim for which they seeks indemnification hereunder without the Indemnifying Person’s prior written consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
). The Indemnifying Person shall not admit any Liability with respect to, or settle, compromise or discharge any Third-Party Claim without the Indemnified Person’s prior written consent (d) The Acquiror which consent shall not be unreasonably withheld, conditioned or delayed); provided that the Indemnified Persons and Person shall agree to any admission of Liability, settlement, compromise or discharge of a Third-Party Claim that the Indemnifying Persons shall use commercially reasonable efforts Person may recommend and that by its terms obligates the Indemnifying Person to avoid production pay the full amount of confidential information (consistent the Liability in connection with Law), and to cause all communications among employees, counsel and others representing any party to a Third such Third-Party Claim to be made so as to preserve any applicable attorneyand which releases the Indemnified Person completely in connection with such Third-client or work-product privilegesParty Claim.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) IfIf a party (“Indemnitee”) receives notice of any claim or the commencement of any action or proceeding with respect to which another party is obligated to provide indemnification (“Indemnitor”) pursuant to either Section 7.1 or Section 7.2 of this Agreement, Indemnitee shall give Indemnitor notice thereof within thirty (30) days after a Notice receiving written notice of Claim is delivered such claim, or within ten (10) days prior to the Seller Representativedate on which an answer or reply, (x) if any, to such claim is due, whichever is earlier. The failure to provide notice as provided in this Section 7.3 shall not excuse Indemnitor from its continuing obligations hereunder; however, Indemnitee’s claim shall be reduced by the Seller Representative produces a damage, if any, to Indemnitor resulting from Indemnitee’s delay or failure to provide the notice described in this Section 7.3. Indemnitor shall be entitled to control the defense of election and (y) any such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in matter with counsel chosen by Indemnitor. In connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to therewith: (i) take control of Indemnitee agrees to consent to any compromise or settlement proposed by Indemnitor where (A) the defense compromise or settlement involves only monetary damages and investigation (B) Indemnitor agrees to pay the full amount of such Third Party Claim, monetary damages and reasonably demonstrates that it has the ability to pay such amount; and (ii) employ and engage attorneys of their own choice (subject Indemnitor agrees to the approval of Acquiror, such approval not consent to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which any compromise or settlement shall be made only with proposed by Indemnitee where either (A) the written consent of Acquiror; provided, compromise or settlement results in no Indemnifiable Losses to Indemnitee that such consent will not be are required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will to be indemnified by Indemnitor or (B) Indemnitee agrees to bear any and all Indemnifiable Losses. In any event, both Indemnitee and Indemnitor shall utilize commercially reasonable efforts to limit or mitigate any asserted liability and cooperate in full. Notwithstanding the foregoingcompromise of, the Indemnifying Persons shall not have the right to assume the or defense against, any such asserted liability, and each of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons them may participate in connection with the defense of such Third Party Claimasserted liability. Indemnitee may not settle or compromise any claim over the objection of Indemnitor if Indemnitor has acknowledged to Indemnitee, (3) in writing, Indemnitor’s obligation fully to indemnify Indemnitee with respect to such Third Party Claim seeks a finding or admission of a violation of claim, except that Indemnitee may settle any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in claim with respect of an Acquiror Indemnified Person or to which it waives its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims indemnification rights under this Article 12Agreement. Indemnitor may not settle or compromise any claim over the objection of Indemnitee if such settlement or compromise would impose any liability or obligation (including, would but not be not be fully indemnified hereunderlimited to, the requirement to take or refrain from taking any action) on such Indemnitee or any of its officers, directors, employees or Affiliates.
(b) In The Seller shall control the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claimconduct, the Acquiror Indemnified Persons shall cooperate in all reasonable respectsthrough counsel of its own choosing at its own expense, at the Indemnifying Persons’ requestof any audit, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimantclaim for refund, or administrative or judicial proceeding involving any cross complaint against asserted Tax liability or refund with respect to the Company (any Personsuch audit, in each caseclaim for refund, at or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”) relating to any taxable period ending on or before the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefromClosing Date.
(c) Notwithstanding anything If Indemnitor chooses to defend any claim, Indemnitee shall make available to Indemnitor, at Indemnitor’s expense, any books, records or other documents or personnel within its control that are necessary or appropriate for such defense. All Indemnifiable Losses under this Section 7.3 shall be reduced by amounts actually recovered or reasonably recoverable from any insurance carrier (net of retroactive adjustments or other reimbursement to the contrary herein, if the Indemnifying Persons do not assume such defense insurer) and investigation or does not acknowledge in writing within thirty (30) days after receipt shall be net of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein Tax benefit to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedindemnified Person.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (a) In the event Purchaser becomes aware of Claim given by Acquiror, which involves a third third-party claim (a “"Third Party Claim”") which Purchaser reasonably expects may result in a demand against the Escrow Fund, Purchaser shall notify Seller of such claim, and Seller shall be entitled, at its expense, to participate in any defense of such claim. Purchaser shall have the right in its sole discretion to settle any Third Party Claim; provided, however, that if Purchaser settles any Third Party Claim without the Seller's consent (which consent shall not be unreasonably withheld or delayed), Purchaser may not make a claim against the Escrow Fund with respect to the amount of Losses incurred by Purchaser in such settlement. In the event that Seller has consented to any such settlement, Seller shall have no power or authority to object under any provision of this Article IX to the amount of any claim by Purchaser against the Escrow Fund with respect to the amount of Losses incurred by Purchaser in such settlement; provided, however, Purchaser does not make a claim from the Escrow Fund greater than the settlement amount disclosed in writing to Seller.
(b) If any Action is filed or initiated against any party entitled to the benefit of indemnity hereunder ("Third Party Claim"), written notice thereof shall be resolved given to the indemnifying party as follows:
promptly as practicable (a) If, and in any event within thirty ten (3010) days after a Notice the service of Claim is delivered the citation or summons); provided, however, that the failure of any indemnified party to give timely notice shall not affect rights to indemnification hereunder except to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) extent that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with indemnifying party demonstrates actual damage caused by such Third Party Claim Noticefailure. After such notice, the Indemnifying Persons indemnifying party shall have be entitled, if it so elects, after written notice to the rightindemnified party, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) Claim and to employ and engage attorneys of their its own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, such attorneys to be reasonably satisfactory to the indemnified party, at the Indemnifying Persons’ sole cost indemnifying party's cost, risk and expenseexpense (unless (i) the indemnifying party has failed to assume the defense of such Third Party Claim or (ii) the named parties to such Third Party Claim include both of the indemnifying party and the indemnified party, and (iii) the indemnified party and its counsel determine in good faith 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 and that joint representation would be inappropriate), and to compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; providedthe indemnified party, that such consent will not to be required unreasonably withheld. The indemnified party may withhold such consent if such compromise or settlement includes would adversely affect the conduct of business or requires less than an unconditional release of to be obtained. If (i) the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right indemnifying party fails to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party ClaimClaim within fifteen (15) days after receipt of notice thereof pursuant to this Section 9.03, or (3ii) the named parties to such Third Party Claim seeks a finding include both the indemnifying party and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or admission of a violation of any criminal Law by an Acquiror Indemnified Personmore legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate, (4) the indemnified party against which such Third Party Claim seeks an injunction has been filed or other equitable remedies in respect initiated will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplieron behalf of and for the account and risk of the indemnifying party; provided, or (6) however, that such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would shall not be compromised or settled without the written consent of the indemnifying party, which consent shall not be fully indemnified hereunder.
(b) unreasonably withheld. In the event that the Indemnifying Persons defend indemnified party assumes defense of the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or settlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 9.03 and for any final judgment (subject to any right of appeal).
(c) Regardless of whether the indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses in connection with the defense, compromise or settlement for any Third Party Claim under this Section 9.03.
(d) The indemnified party shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, respects with the Indemnifying Persons indemnifying party and their such attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom; provided, includinghowever, if appropriate and related to such Third Party Claim, in making any counterclaim against that the third indemnified party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their its own sole cost and expensecost, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything . The indemnifying party shall pay all expenses due under this Section 9.03 as such expenses become due. In the event such expenses are not so paid, the indemnified party shall be entitled to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the settle any Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder under this Section 9.03 without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedindemnifying party and without waiving any rights the indemnified party may have against the indemnifying party.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror(a) In the event that any Parent Indemnified Party desires to make a claim against the Escrow Deposit or any Stockholder Indemnified Party desires to make a claim against Parent, which involves a in each case in connection with any third party litigation, arbitration, action suit, proceeding, claim, investigation or demand at any time instituted against or made upon it for which it may seek indemnification hereunder (a “Third Party Claim”), the Indemnified Party shall be resolved as follows:
(a) If, within thirty (30) days after a Notice promptly notify the Indemnification Control Person of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, and the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation Indemnified Party’s claim for indemnification with respect thereto after obtaining notice of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that failure to promptly give such consent notice will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, relieve the Indemnifying Persons shall not Party of its indemnification obligations under this Article 10, except to the extent, if any, that the Indemnifying Party has actually been prejudiced thereby.
(b) The Indemnification Control Person will have the right to assume the defense of a the Third Party Claim if with counsel of its choice reasonably satisfactory to the Indemnified Party by written notice to the Indemnified Party within twenty (120) days after the Indemnifying Persons fail to actively and diligently conduct the defense Indemnification Control Person has received notice of the Third Party Claim; provided, however, that the Indemnified Party shall not be required to permit such an assumption of the defense of any Third Party Claim that, if not first paid, discharged or otherwise complied with, would result in a Material Adverse Effect on the Indemnified Party.
(after notice and reasonable opportunity c) The assumption of the defense of any Third Party Claim by the Indemnification Control Person shall not constitute an admission of responsibility to cure), (2) indemnify the Acquiror Indemnified Persons have received advice from counsel that an actual Party or potential conflict exists between the Acquiror Indemnified Persons and in any manner impair or restrict the Indemnifying Persons Party’s rights to later be reimbursed its costs and expenses if indemnification under this Agreement with respect to such claim, investigation or proceeding was not required. The Indemnification Control Person shall not, in connection with the defense of such Third claim, consent to the entry of any judgment (other than a judgment of dismissal on the merits without costs) or enter into any settlement without the written consent of the Indemnified Party Claim(which consent shall not be unreasonably withheld, delayed or conditioned), except that no such consent shall be required if (3i) such Third Party Claim seeks a there is no finding or admission of a any violation of any criminal Law by an Acquiror Indemnified PersonApplicable Law, (4ii) such Third Party Claim seeks an injunction or other equitable remedies the sole relief provided is monetary damages that are reimbursed in full as Losses (subject to, with respect to claims by the Parent Indemnified Parties, the remaining Deductible Amount, if any, which will be paid by the Parent Indemnified Party, and the indemnification limits set forth in this Agreement), and (iii) (except in respect of an Acquiror any claim relating to Taxes) the settlement shall include the giving by the claimant or the plaintiff to the Indemnified Person Party a release from all liability in respect to such claim or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunderlitigation.
(bd) In If the event that Indemnification Control Person assumes the Indemnifying Persons defend the Acquiror Indemnified Persons against defense of a Third Party Claim, the Acquiror Indemnified Persons Party shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys be entitled to participate in the investigationdefense of the claim, trial but solely by observation and comment to the Indemnification Control Person, and any counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense.
(e) If the Indemnification Control Person does not assume the defense of a Third Party Claim or any litigation resulting therefrom after receipt of notice of such Third Party Claim and any appeal arising therefromfrom the Indemnified Party under (a) or (b) above, including, if appropriate and related to the Indemnified Party may defend against such Third Party Claim, claim in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Personssuch manner as it reasonably deems appropriate. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but Party may not control) the investigation, trial and defense of settle such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder claim without the prior written consent of the Indemnifying PersonsIndemnification Control Person, which consent shall not be unreasonably withheld, conditioned delayed, or delayedconditioned.
(df) The Acquiror Parent Indemnified Persons Parties and the Indemnifying Persons Stockholder Indemnified Parties shall use commercially reasonable efforts to avoid production cooperate in good faith and in all respects with the Indemnification Control Person and its representatives (including, without limitation, its counsel) in the investigation, negotiation, settlement, trial and/or defense of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim (and any appeal arising therefrom). The Parties shall cooperate with each other in any notifications to and information requests of any insurers. No individual representative of any Indemnifying Party, or any Indemnifying Party’s Affiliates, shall be made so as to preserve personally liable for any applicable attorney-client Loss or work-product privileges.
(e) Notwithstanding anything to the contrary in Losses under this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsexcept as specifically agreed to by said individual representative.
Appears in 1 contract
Sources: Merger Agreement (Navisite Inc)
Third Party Claims. Each Notice (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given not later than 30 days after receipt of Claim given by Acquirorthe Indemnification Notice, which involves a third party (a “to assume control of the defence, compromise or settlement of the Third Party Claim”), shall be resolved as followsClaim provided that:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeinvolves only money damages and does not seek any injunctive or other equitable relief;
(b) if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by the same counsel would, in the judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences);
(c) settlement of, or an adverse judgment with respect to, the Indemnifying Persons shall have Third Party Claim is not, in the right, but not the obligation to (i) take control judgment of the defense Indemnitee, likely to establish a precedent, custom or practice adverse to the continuing business interest of the Indemnitee; and
(d) the Indemnitor, from time to time, at the request of the Indemnitees Representative, gives security satisfactory to the Indemnitees Representative against any costs and investigation other liabilities to which the Indemnitee may be or become exposed as a result of such that Third Party Claim.
(2) On the assumption of control by the Indemnitor, it is conclusively established for purposes of this Agreement that the Third Party Claim is within the scope of, and is subject to, the indemnification pursuant to this Article 8, and:
(iia) employ the Indemnitor will actively and engage attorneys diligently proceed with the defence, compromise or settlement of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, Third Party Claim at the Indemnifying Persons’ Indemnitor’s sole cost and expense, and including the retaining of counsel reasonably satisfactory to the Indemnitees Representative;
(iiib) compromise or settle such Third Party Claimthe Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim;
(c) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and
(d) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 8.6(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 8.6(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitees Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expenseuse its commercially reasonable efforts to make available to the Indemnitor all relevant information in its possession or under its control (provided that it does not cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, monitor and further participate in (but not control) the investigationreasonable opinion of counsel for the Indemnitor, trial and defense of such Third Party Claim and any appeal arising therefrom.necessary to enable the Indemnitor to conduct that defence, provided always that:
(ca) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation no admission of fault may be made by or does not acknowledge in writing within thirty (30) days after receipt on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party ClaimPurchaser, the Acquiror Indemnified Persons shall not settle, compromise Parent or pay such Third Party Claim for which they seeks indemnification hereunder any Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser or Parent, which as applicable;
(b) no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent shall of the Vendor; and
(c) the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, in the reasonable opinion of the Indemnitee’s legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) The Acquiror Indemnified Persons and If (i) the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with LawIndemnitor does not give the relevant Indemnitees Representative the notice provided in Section 8.6(1), and to cause all communications among employees(ii) any of the conditions in Section 8.6(1) are unsatisfied, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.or
Appears in 1 contract
Sources: Share Purchase Agreement
Third Party Claims. Each Notice (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given not later than 30 days after receipt of Claim given by Acquirorthe Indemnification Notice, which involves a third party (a “to assume control of the defence, compromise or settlement of the Third Party Claim”), shall be resolved as followsClaim provided that:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeinvolves only money damages and does not seek any injunctive or other equitable relief;
(b) if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by the same counsel would, in the judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences);
(c) settlement of, or an adverse judgment with respect to, the Indemnifying Persons shall have Third Party Claim is not, in the right, but not the obligation to (i) take control judgment of the defense Indemnitee, likely to establish a precedent, custom or practice adverse to the continuing business interest of the Indemnitee; and
(d) the Indemnitor, from time to time, at the request of the Indemnitees Representative, gives security satisfactory to the Indemnitees Representative against any costs and investigation other liabilities to which the Indemnitee may be or become exposed as a result of such that Third Party Claim.
(2) On the assumption of control by the Indemnitor, it is conclusively established for purposes of this Agreement that the Third Party Claim is within the scope of, and is subject to, the indemnification pursuant to this Article 7, and:
(iia) employ the Indemnitor will actively and engage attorneys diligently proceed with the defence, compromise or settlement of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, Third Party Claim at the Indemnifying Persons’ Indemnitor’s sole cost and expense, and including the retaining of counsel reasonably satisfactory to the Indemnitees Representative;
(iiib) compromise or settle such Third Party Claimthe Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim;
(c) the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and
(d) the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 7.6(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 7.6(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitees Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expenseuse its best efforts to make available to the Indemnitor all relevant information in its possession or under its control (provided that it does not cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, monitor and further participate in (but not control) the investigationreasonable opinion of counsel for the Indemnitor, trial and defense of such Third Party Claim and any appeal arising therefrom.necessary to enable the Indemnitor to conduct that defence, provided always that:
(ca) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation no admission of fault may be made by or does not acknowledge in writing within thirty (30) days after receipt on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser;
(b) no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent of the Vendor; and
(c) the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee’s legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) If (i) the Indemnitor does not give the relevant Indemnitees Representative the notice provided in Section 7.6(1), (ii) any of the conditions in Section 7.6(1) are unsatisfied, or (iii) the Indemnitor breaches any of its obligations under Sections 7.6(2) or 7.6(3), the applicable Indemnitees Representative may assume control of the defence, compromise or settlement of the Third Party Claim as in its sole discretion may appear advisable, and is entitled to retain counsel as in its sole discretion may appear advisable, the whole at the Indemnitor’s sole cost and expense. Any settlement or other final determination of the Third Party Claim will be binding on the Indemnitor. The Acquiror Indemnified Persons Indemnitor will, at its sole cost and expense, cooperate fully with the Indemnifying Persons shall Indemnitee and its Indemnitees Representative and use commercially reasonable its best efforts to avoid production make available to the Indemnitee and its Indemnitees Representative all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of confidential information counsel for the Indemnitee, necessary to enable the Indemnitee to conduct the defence. The Indemnitor will reimburse the Indemnitee and its Indemnitees Representative promptly and periodically for the costs of defending against the Third Party Claim (consistent with Lawincluding legal fees and expenses), and will remain responsible for any Losses the Indemnitee and its Indemnitees Representative may suffer resulting from, arising out of or relating to cause all communications among employees, counsel and others representing any party to a the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary fullest extent provided in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle 7.
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Third Party Claims. Each Notice If any Buyer Indemnified Party receives notice of Claim given the assertion or commencement of any claim or Legal Proceeding (whether against the Company, Buyer or any other Person) made or brought by Acquiror, which involves any Person who is not a third 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 reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Losses that have been or may be resolved as follows:
sustained by the Buyer Indemnified Parties. The Securityholders’ Representative shall have the right to participate in or, upon providing written notice to the Buyer Indemnified Parties within fifteen (a) If, within thirty (3015) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice receipt of election and (y) such notice of election includes a written acknowledgment from such Third Party Claim in which the Seller Securityholders’ Representative acknowledges on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that Securityholders without qualification the Indemnifying Persons would be required Securityholders’ indemnification obligation hereunder (subject only to indemnify the Acquiror Indemnified Persons for all Damages applicable limitations set forth in connection with such Section 8.3 and this Section 8.6), to assume the defense of any Third Party Claim Noticeat 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 Indemnifying Persons Buyer Indemnified Parties shall cooperate reasonably in the defense thereof. The Buyer Indemnified Parties shall have the rightright to participate in the defense of any Third Party Claim with counsel selected by it, but not subject to the obligation Securityholders’ Representative’s right to (i) take control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the defense Buyer Indemnified Parties; provided, that if in the reasonable opinion of counsel to the 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 investigation disbursements shall be at the expense of the Indemnifying Securityholders. If the Securityholders’ Representative elects not to compromise or defend such Third Party Claim, (ii) employ fails to give timely and engage attorneys of their own choice (subject sufficient notification to the approval Buyer Indemnified Parties in writing of Acquirorits election to defend as provided in this Agreement, or loses its right to defend such approval not Third Party Claim by failing to be unreasonably withheld, conditioned or delayed) to handle and diligently defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which 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 Claim and seek indemnification for any and all Losses based upon, arising from or settlement relating to such Third Party Claim. Notwithstanding anything to the contrary contained in this Section 8.6, the Securityholders’ Representative shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right entitled to assume the defense control of a Third Party Claim if (1i) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity relates to cure)or arises in connection with any criminal proceeding, action, indictment, investigation or allegation, (2ii) the Acquiror Third Party Claim seeks injunctive or other equitable relief or relief other than for monetary Damages against the Buyer Indemnified Persons have received advice from counsel Parties, (iii) the Buyer Indemnified Parties reasonably believe that the Third Party Claim, if adversely determined, would impair in any material respect the financial condition, business, operations, reputation or prospects of the Buyer Indemnified Parties or any of their respective Affiliates, (iv) an actual or potential readily apparent conflict of interest (as determined by the Buyer Indemnified Parties after obtaining advice of counsel) exists between the Acquiror Indemnified Persons Indemnifying Securityholders and the Indemnifying Persons Buyer Indemnified Parties with respect to the Third Party Claim that precludes effective joint representation, (v) the Third Party Claim is, in the discretion of the Buyer Indemnified Parties, subject to recovery under the R&W Insurance Policy, or (vi) the amounts reasonably expected to be incurred in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Persontogether with all other outstanding claims on the Indemnity Escrow Fund, (4) such Third Party Claim seeks an injunction or other equitable remedies exceed the amount remaining in respect of an Acquiror Indemnified Person or its businessthe Indemnity Escrow Fund. If, (5) such Third Party Claim relates pursuant to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party ClaimSection 8.6(a), the Acquiror Buyer Indemnified Persons shall cooperate in all reasonable respectsParties so contest, at the Indemnifying Persons’ requestdefend, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, litigate or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for settle a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks are entitled to indemnification hereunder without hereunder, the prior written consent of Buyer Indemnified Parties shall be reimbursed by the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons Securityholders for the reasonable attorneys’ fees and other expenses of defending the Indemnifying Persons 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 Claim which are incurred from time to be made so as time, promptly following the presentation to preserve the Securityholders’ Representative of itemized bills for such attorneys’ fees and other expenses, subject, however, to any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything limitations set forth in Section 8.3 this Section 8.6. Subject to the contrary any applicable limitations set forth in this AgreementSection 8.6, Section 8.1(dall expenses (including attorneys’ fees) incurred by the Securityholders’ Representative in connection with the foregoing shall exclusively govern S Corporation Tax Proceedingsbe paid by the Indemnifying Securityholders.
Appears in 1 contract
Third Party Claims. Each (i) If the claim or demand set forth in the Notice of Claim given pursuant to Section 7.3(a) is a claim or demand asserted by Acquiror, which involves a third party other than a Tax Contest (a “Third Party Claim”), the Indemnitor shall be resolved as follows:
have fifteen (a15) If, within thirty (30) days Business Days after a the receipt of the Notice of Claim is delivered to notify the Seller Representative, (x) the Seller Representative produces a notice Indemnitee in writing of its election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with defend such Third Party Claim Noticeon behalf of such Indemnitee, with counsel selected by the Indemnifying Persons shall have Indemnitor and reasonably acceptable to the right, but not Indemnitee.
(ii) If the obligation Indemnitor elects to (i) take control of assume the defense and investigation of any such Third Party Claim, then:
(A) the Indemnitee may, at its own expense, retain its own counsel to participate in the defense of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, however, that such consent will not be required if such settlement includes an unconditional release the Indemnitor shall pay the reasonable attorneys’ fees of the Acquiror Indemnified Persons and provides solely for payment Indemnitee (x) if the employment of monetary damages for which the Acquiror Indemnified Persons will be indemnified separate counsel shall have been authorized in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons writing by any such Indemnitor in connection with the defense of such Third Party Claim; or (y) if the named parties to the action or proceeding include both the Indemnitor and the Indemnitee, and there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have one counsel defend both, provided that such Indemnitor shall only be obligated to pay for one counsel for all Indemnitees;
(3B) the Indemnitee shall, at its own expense, make available to the Indemnitor all books, records and other documents and materials that are under the direct or indirect control of the Indemnitee or any of the Indemnitee’s agents and that the Indemnitor considers necessary or desirable for the defense of such matter, and cooperate in all reasonable ways with, and make its employees and advisors available or otherwise render reasonable assistance to, the Indemnitor and its agents; and
(C) the Indemnitor shall not, without the written consent of the Indemnitee, which shall not be unreasonably withheld or delayed, consent to a settlement or the entry of any judgment arising from any such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person(x) which does not, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event extent that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, Indemnitee may have any liability with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related respect to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense include as an unconditional term thereof a written release of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate Indemnitee from all liability in (but not control) the investigation, trial and defense respect of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then or (y) in any manner that involves injunctive relief against the Acquiror Indemnified Persons shall have Indemnitee.
(iii) If the right Indemnitor elects not to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed assume the defense of such Third Party Claim, then the Acquiror Indemnified Persons Indemnitee may proceed diligently to defend such Third Party Claim with the assistance of counsel reasonably satisfactory to the Indemnitor; provided, that the Indemnitee shall not settle, adjust or compromise such matter, or pay admit any liability with respect to such Third Party Claim for which they seeks indemnification hereunder matter, without the prior written consent of the Indemnifying PersonsIndemnitor, which such consent shall not to be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice In the event Parent becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”) which Parent reasonably believes may result in a claim for indemnification pursuant to this Article VIII, Parent shall notify the Stockholder Representative of such claim with an Indemnification Claim Notice (a “Third Party Notice”), and the Third Party Notice shall be resolved as follows:
accompanied by copies of any documentation submitted by the third party making such Third Party Claim (a) If, within thirty (30) days after a Notice of Claim is delivered except that Parent may withhold from Stockholder Representative such communications with its legal counsel to the Seller Representativeextent that legal counsel to Parent advises that providing such communication could result in the loss of any attorney-client privilege or right under the work-product doctrine of Parent or any Indemnitee in respect of such claim, after giving due consideration to any “community of interest” or similar privilege, if any); provided, that no delay or failure on the part of Parent in delivering a Third Party Notice shall cause any Parent Indemnified Party to forfeit any indemnification rights under this Article VIII except to the extent that the Company Indemnitors are actually prejudiced by such delay or failure. Upon receipt of a Third Party Notice, the Stockholder Representative shall be entitled (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors Company Indemnitors and the Sellers (the “Indemnifying Persons”at their expense) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the rightparticipate in, but not the obligation to (i) take control of control, determine or conduct, the defense and investigation of such Third Party Claim. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any such claim and the Stockholder Representative shall not be entitled to control any negotiation of settlement, adjustment or compromise with respect to any such Third Party Claim; provided, that except with the consent of the Stockholder Representative (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval consent not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense no settlement of such Third Party Claim, (3) any such Third Party Claim seeks a finding or admission with third party claimants shall be determinative of a violation the right of any criminal Law by an Acquiror Parent Indemnified Person, (4) Party to be indemnified with respect to such Third Party Claim seeks an injunction or other equitable remedies in settlement or any Losses relating thereto; provided, further, that the consent of the Stockholder Representative with respect to any settlement of an Acquiror Indemnified Person or its business, (5) any such Third Party Claim relates shall be deemed to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In have been given unless the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons Stockholder Representative shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing have objected within thirty (30) days after receipt of a written request for such consent by Parent. In the Third Party Claim Notice its obligation event that the Stockholder Representative has consented to indemnify any such settlement, adjustment or compromise, the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons Company Indemnitors shall have no power or authority to object under any provision of this Article VIII to the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense amount of such Third Party Claim. Notwithstanding anything herein to settlement, adjustment or compromise; provided, that any such amounts are recoverable following the contrary, whether or not the Indemnifying Persons shall have assumed the defense application of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary relevant limitations set forth in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle VIII.
Appears in 1 contract
Third Party Claims. Each Notice (i) In the event that a Seller or the Buyer becomes aware of Claim given by Acquiroran assertion, which involves a third party demand, proceeding or claim (a “Third Party Claim”), by any Person, that may give rise to indemnification hereunder, then such party shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to promptly notify the Buyer or Seller Designated Representative, as applicable in writing and in reasonable detail; provided that no delay in providing such notification shall affect the Indemnified Parties’ right to indemnification hereunder. The Buyer shall have the right (xbut not the obligation) in its sole discretion to assume and conduct the defense of, and to settle or resolve, any such Third Party Claim. Each Seller Representative produces a notice (i) shall cooperate with the Buyer in the defense of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeand make available to the Buyer any documents, the Indemnifying Persons shall have the right, but not the obligation to (i) take materials and other information in its possession or control of that may be necessary for the defense and investigation of such Third Party Claim, (ii) employ shall have the right to receive copies of all material pleadings, notices and engage attorneys of their own choice (subject communications with respect to the approval Third Party Claim to the extent that receipt of Acquirorsuch documents does not affect any privilege or trade secrets relating to any Indemnified Party and (iii) shall be entitled, such approval at its expense, to participate in, but not to determine or conduct, any defense of the Third Party Claim or settlement negotiations with respect to the third-party claim. However, except with the consent of the Seller Designated Representative (which consent shall not be unreasonably withheld, conditioned or delayed) to handle delayed and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with deemed to have been given unless the Seller Designated Representative shall have objected within 15 days after a written consent of Acquiror; provided, that request for such consent will not by the Buyer), no settlement of any such claim with any third-party claimant shall be required if such settlement includes an unconditional release determinative of the Acquiror Indemnified Persons and provides solely for payment existence of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullor amount of Losses relating to such matter. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend Seller Designated Representative has consented to any such settlement, no Seller shall have any power or authority to object (including pursuant to Section 6.15) to the Acquiror Indemnified Persons against a Third Party Claimamount of any claim for indemnity with respect to such settlement. Each Seller hereby irrevocably constitutes and appoints the Seller Designated Representative as its true and lawful agent and attorney-in-fact with full power and authority to act, including full power of substitution, in its name or on its behalf with respect to any and all matters arising from or in any way relating to this Agreement or the Acquiror Indemnified Persons shall cooperate transactions contemplated hereby, including, to do all things and perform all acts required or deemed advisable, in all reasonable respectsthe opinion of the Seller Designated Representative in its sole discretion, at the Indemnifying Persons’ request, in connection with the Indemnifying Persons transactions contemplated by this Agreement and their attorneys in the Escrow Agreement. The Seller Designated Representative shall have the power to enforce the obligations, covenants and agreements of each Seller under this Agreement and the Escrow Agreement. Without limiting the generality of the foregoing, (a) any communication or other delivery validly delivered to the Seller Designated Representative shall be deemed to have been validly delivered by or to each of the Sellers, (b) any waiver of any provision of this Agreement or consent, or compromise of any claim arising from or relating to this Agreement and the Escrow Agreement, by the Seller Designated Representative shall be binding upon each and every Seller, and (c) the Seller Designated Representative is hereby authorized to execute for and on behalf of each Seller (i) any amendment to this Agreement and the Escrow Agreement or (ii) any agreement, certificate, document or instrument contemplated hereby or thereby. The Buyer shall be entitled to rely (without investigation) on any action taken by the Seller Designated Representative as being taken by the Seller Designated Representative for itself and on behalf of each of the Sellers, trial and defense fully authorized by each of the Sellers. The Sellers or the Seller Designated Representative may not, under any circumstances whatsoever, settle, adjust or compromise any such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, Buyer (which consent shall not be unreasonably withheld, conditioned or delayed).
(dii) The Acquiror Indemnified Persons and If Buyer does not elect to proceed with the Indemnifying Persons shall use commercially reasonable efforts to avoid production defense of confidential information (consistent any such Third Party Claim, the Seller Designated Representative may proceed with Law), and to cause all communications among employees, counsel and others representing any party to a the defense of such Third Party Claim with counsel reasonably satisfactory to Buyer; provided, however, that the Seller Designated Representative may not, under any circumstances whatsoever, settle, adjust or compromise any such proceeding or claim without the prior written consent of Buyer (which consent shall not be made so as unreasonably withheld, conditioned or delayed). Sellers and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to preserve any applicable attorneysuch Third Party Claim and furnishing, without expense (other than reimbursement of actual out-client or workof-product privileges.
(epocket expenses) Notwithstanding anything to the contrary in this Agreementdefending party, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsmanagement employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.
Appears in 1 contract
Third Party Claims. Each Notice In the event of Claim given by Acquiror, which involves a third party claim against (a “Third Party Claim”)i) an Indemnitee; or (ii) any Group Company, shall be resolved as followsfor which such Indemnitee seeks indemnification from an Indemnitor pursuant to this Section 9, then:
(a) If, within thirty no settlement shall be deemed conclusive with respect to whether there was an Indemnifiable Loss or the amount of such Indemnifiable Loss unless such settlement is consented to by the relevant Indemnitor;
(30) days after a Notice of Claim is delivered to the Seller Representative, (xb) the Seller Representative produces a notice relevant Indemnitor may defend such claim at their own expense through counsel of election and its own choosing; and
(yc) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons relevant Indemnitor shall have the right, but not the obligation to (i) take sole control of the defense and investigation settlement of such Third Party Claimclaim provided that:
(i) the Indemnitee shall be afforded the opportunity to approve counsel selected by such Indemnitor, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, with such approval not to be unreasonably withheld, conditioned or delayed;
(ii) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle without limiting such Third Party Claim, which compromise or settlement shall be made only with the written consent Indemnitor’s right of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoingcontrol, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct Indemnitee may participate in the defense of the Third Party Claim claim through counsel of its own choosing at its sole expense;
(after notice and reasonable opportunity to cure), (2iii) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection Indemnitor will consult with the Indemnitee on the conduct of the claim (including any defense of such Third Party Claim, (3the claim) such Third Party Claim seeks a finding or admission of a violation and take reasonable account of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies representations made in respect of an Acquiror Indemnified Person or its business, the conduct of the claim by the Indemnitee; and
(5iv) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim Indemnitor shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder settle any claim without the prior written consent of the Indemnifying PersonsIndemnitee, which consent shall not be unreasonably withheld, conditioned or delayed.
(dv) The Acquiror Indemnified Persons Indemnitee shall reasonably cooperate with such Indemnitor in the defense and the Indemnifying Persons settlement of such claim and 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 Claim to be made so as to preserve any applicable attorney-client not prejudice or work-product privileges.
(e) Notwithstanding do anything to prejudice such claim without the contrary prior written consent of such Indemnitor. Any dispute related to this Section 9 shall be resolved pursuant to Section 11.13 hereof. Notwithstanding any provision to the contrary, such Indemnitor shall indemnify the Indemnitee to the reasonable satisfaction of the Indemnitee against all reasonable out of pocket costs and expenses, including those of its legal advisors, incurred in respect of any claim which is the subject of this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings9.3.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a If any third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf make any claim or commence any arbitration proceeding or suit against any one or more of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons with respect to which an Indemnified Person intends to make any claim for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquirorindemnification against Baxter under Section 5.3 or against VWR under Section 6.6, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respectspromptly give written notice to Baxter or VWR, at as the Indemnifying Persons’ requestcase may be, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimantclaim, arbitration proceeding or any cross complaint against any Personsuit and the following provisions shall apply:
10.1 Subject to Section 10.2, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate conduct and control, through counsel of their choosing, defend the defense of any third party claim, arbitration proceeding or suit, and such Third Party Claim Indemnified Persons may settle the same; provided that such Indemnified Persons shall give the indemnifying party advance notice of any proposed settlement. Such Indemnified Persons shall permit the indemnifying party to participate in the defense of any such action or suit through counsel chosen by it, provided that the fees and expenses of such counsel shall be borne by the indemnifying party. Any settlement with respect to a claim for money damages effected by such Indemnified Persons after the indemnifying party has notified such Indemnified Persons in writing of the indemnifying party's disapproval of such settlement, shall discharge the indemnifying party from liability with respect to the subject matter thereof under this Agreement, and no claim for indemnification therefor shall be claimed by such Indemnified Persons under Section 5.3 or Section 6.6, as the case may be.
10.2 Notwithstanding Section 10.1, if the remedy sought in any claim, arbitration proceeding or suit referred to in this Section 10 is solely money damages, the indemnifying party shall have 15 business days after receipt of the sole power notice referred to direct above in this Section 10 to notify such Indemnified Persons that it elects to conduct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claimclaim, proceeding or suit. Notwithstanding anything herein to If the contraryindemnifying party does not give the foregoing notice, whether or not the Indemnifying such Indemnified Persons shall have assumed the right to defend or settle such claim, proceeding or suit in the exercise of their exclusive discretion, and the indemnifying party shall, upon request from any of such Indemnified Persons, promptly pay to them in accordance with Section 5.3 or Section 6.6, as the case may be, the amount of any liabilities, damages, losses and expenses, including reasonable attorney's fees, resulting from such claim, proceeding or suit. If the indemnifying party gives the foregoing notice, the indemnifying party shall have the right to undertake, conduct and control, through counsel of its own choosing and at the sole expense of the indemnifying party, the conduct and control of the defense and any settlement of such Third Party Claimclaim, proceeding or suit, and such Indemnified Persons shall cooperate with the Acquiror indemnifying party in connection therewith; provided that: (a) the indemnifying party shall not thereby permit to exist any lien, encumbrance or other adverse charge upon any asset of any of such Indemnified Persons; (b) the indemnifying party shall permit such Indemnified Persons to participate in such defense or settlement through counsel chosen by such Indemnified Persons, but the fees and expenses of such counsel shall be borne by such Indemnified Persons except as provided in clause (c) below; and (c) the indemnifying party shall agree to reimburse promptly under Section 5.3 or Section 6.6, as the case may be, such Indemnified Persons for the full amount of any liabilities, damages, losses and expenses, including reasonable attorneys' fees, resulting from such claim, proceeding or suit, except in each case for any fees and expenses of counsel for such Indemnified Persons incurred after the assumption of the conduct and control of such claim, proceeding or suit by the indemnifying party. So long as the indemnifying party is contesting any such claim, proceeding or suit in good faith, such Indemnified Persons shall not settlepay or settle any such claim, compromise proceeding or pay suit; provided, however, that such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and shall have the Indemnifying right to pay or settle any such claim, proceeding or suit; provided, further, that in such event such Indemnified Persons shall use commercially reasonable efforts be deemed to avoid production of confidential information (consistent with Law)have waived any right to indemnity therefor by the indemnifying party under Section 5.3 or Section 6.6, and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegesthe case may be.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Supply Agreement (VWR Corp)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to In the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf event of the Seller Guarantors and the Sellers assertion or commencement by any person of any claim or proceeding (the “whether against any Indemnified Person or any other Person) with respect to which an Indemnifying Persons”) that the Indemnifying Persons would be required Party may become obligated to indemnify the Acquiror indemnify, hold harmless, compensate or reimburse any Indemnified Persons for all Damages in connection with such Third Party Claim NoticePerson pursuant to this Section 8, the Indemnifying Persons Indemnified Person shall have the right, but not the obligation at its election, to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection proceed with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding claim or admission of a violation proceeding on its own with counsel reasonably satisfactory to Stockholders’ Agent. If the Indemnified Person so proceeds with the defense of any criminal Law by an Acquiror Indemnified Personsuch claim or proceeding: (i) subject to the other provisions of Section 8, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at expenses relating to the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim claim or proceeding shall be borne and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of paid exclusively by the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in Party; (but not controlii) the investigation, trial Indemnifying Party shall use commercially reasonable efforts to make available to the Indemnified Person any documents and materials in their possession or control that may be necessary to the defense of such Third Party Claim and any appeal arising therefrom.
claim or proceeding; (ciii) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons Stockholders’ Agent shall have the right to retain separate counsel receive within seven (7) days of their choosingAcquiror’s receipt, defend copies of all pleadings, notices and communications with respect to third-party claims in which the amount in controversy is greater than $100,000 (each, a “Significant Claim”) to the extent that receipt of such Third Party Claim documents does not affect any privilege relating to any Indemnified Person and have the sole power shall be entitled, at its expense, to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled participate in, but not to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the determine or conduct, any defense of such Third Party Claim. Notwithstanding anything herein Significant Claim or settlement negotiations with respect to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Significant Claim, and, except with the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsStockholders’ Agent, which consent shall not be unreasonably withheld, conditioned or delayeddelayed and which shall be deemed to have been given unless Stockholders’ Agent shall have objected within 15 days after delivery to Stockholders’ Agent of a written request for such consent by Acquiror, the Indemnified Person shall not settle, adjust or compromise any such claim or proceeding; provided, that, notwithstanding the foregoing, any such settlement, adjustment or compromise shall neither be conclusive evidence that such Significant Claim or proceeding is an indemnifiable claim pursuant to this Section 8 nor conclusive evidence of the amount of Damages incurred by the Indemnified Person in connection with such Significant Claim or proceeding.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement
Third Party Claims. Each Notice In the event Parent becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which Parent reasonably believes may result in a demand for indemnification pursuant to this ARTICLE VII, Parent shall promptly notify the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party) of such claim, and the Stockholder Representative shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative entitled on behalf of the Seller Guarantors and Indemnifying Parties (or, in the Sellers (the “event indemnification is being sought hereunder directly from an Indemnifying Persons”) that the Party, such Indemnifying Persons would Party shall be required entitled), at their expense, to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the rightparticipate in, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdetermine or conduct, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein The failure to so notify the Stockholder Representative promptly shall not relieve the Indemnifying Parties of any liability, except to the contrary, whether or not extent and only to the Indemnifying Persons shall have assumed extent the Stockholder Representative demonstrates that the defense of such Third Party Claimaction is materially prejudiced thereby. 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 Acquiror Indemnified Persons Parties in defense of such third-party claim, regardless of the outcome of such claim, shall not be deemed Losses hereunder. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, compromise or pay any such claim; provided, however, that, except with the consent of the Stockholder Representative (or, in the event indemnification is being sought hereunder directly from an Indemnifying Party, such Indemnifying Party), no settlement of any such Third Party Claim for which they seeks indemnification hereunder without with third party claimants shall be determinative of the prior written amount of Losses relating to such matter; provided further, however, the consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts Stockholder Representative with respect to avoid production any settlement of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a such Third Party Claim shall be deemed to be made so as have been given unless the Stockholder Representative shall have objected within twenty (20) days after a written request for such consent by Parent. In the event that the Stockholder Representative has consented to preserve any applicable attorney-client such settlement, the Indemnifying Parties shall have no power or work-product privileges.
(e) Notwithstanding anything authority to object under any provision of this ARTICLE VII to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedingsamount of any Third Party Claim by Parent.
Appears in 1 contract
Third Party Claims. Each Notice of Claim (1) The Indemnitor has the right, by notice to the applicable Indemnitees Representative given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) not later than 30 days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf receipt of the Seller Guarantors and Indemnification Notice, to assume control of the Sellers (defence, compromise or settlement of the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeprovided that: the Third Party Claim involves only money damages and does not seek any injunctive or other equitable relief; if the named parties in any Third Party Claim include both the Indemnitor and the Indemnitee, representation by the same counsel would, in the judgment of the Indemnitee, still be appropriate notwithstanding any actual or potential differing interests between them (including the availability of different defences); and settlement of, or an adverse judgment with respect to, the Indemnifying Persons shall have Third Party Claim is not, in the right, but not the obligation to (i) take control judgment of the defense and investigation Indemnitee, likely to establish a precedent, custom or practice adverse to the continuing business interest of such the Indemnitee.
(2) On the assumption of control by the Indemnitor, it is conclusively established for purposes of this Agreement that the Third Party ClaimClaim is within the scope of, (ii) employ and engage attorneys is subject to, the indemnification pursuant to this Article 7, and: the Indemnitor will actively and diligently proceed with the defence, compromise or settlement of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, Third Party Claim at the Indemnifying Persons’ Indemnitor's sole cost and expense, and (iii) compromise or settle such Third Party Claimincluding the retaining of counsel reasonably satisfactory to the Indemnitees Representative; the Indemnitor will keep the Indemnitees Representative fully advised with respect to the defence, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice including supplying copies of all relevant documents promptly as they become available) and reasonable opportunity will arrange for its counsel to cure), (2) inform the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between Indemnitees Representative on a regular basis of the Acquiror Indemnified Persons and status of the Indemnifying Persons in connection with the defense of such Third Party Claim; the Indemnitee may retain separate co-counsel at its sole cost and expense and participate in the defence of the Third Party Claim (provided the Indemnitor shall continue to control that defence); and the Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim unless consented to by the Indemnitees Representative (which consent may not be unreasonably or arbitrarily withheld, delayed or conditioned).
(3) such Third Party Claim seeks a finding or admission of a violation Provided all the conditions set forth in Section 7.6(1) are satisfied and the Indemnitor is not in breach of any criminal Law by an Acquiror Indemnified Personof its obligations under Section 7.6(2), (4) such Third Party Claim seeks an injunction or other equitable remedies in respect each of an Acquiror Indemnified Person or the Indemnitee and its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each caseIndemnitees Representative will, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons mayIndemnitor, at their own sole cost co-operate with the Indemnitor and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything use its best efforts to make available to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation Indemnitor all relevant information in its possession or under its control (provided that it does not acknowledge cause the Indemnitee or its Indemnitees Representative to breach any confidentiality obligations) and will take such other steps as are, in writing within thirty (30) days after receipt the reasonable opinion of counsel for the Indemnitor, necessary to enable the Indemnitor to conduct that defence, provided always that: no admission of fault may be made by or on behalf of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against Purchaser or any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder Purchaser Indemnitee without the prior written consent of the Indemnifying PersonsPurchaser; no admission of fault may be made by or on behalf of the Vendor or any Vendor Indemnitee without the prior written consent of the Vendor; and the Indemnitee and its Indemnitees Representative are not obligated to take any measures which, which consent shall not in the reasonable opinion of the Indemnitee's legal counsel, could be unreasonably withheld, conditioned prejudicial or delayedunfavourable to the Indemnitee.
(d4) If (i) the Indemnitor does not give the relevant Indemnitees Representative the notice provided in Section 7.6(1), (ii) any of the conditions in Section 7.6(1) are unsatisfied, or (iii) the Indemnitor breaches any of its obligations under Sections 7.6(2) or 7.6(3), the applicable Indemnitees Representative may assume control of the defence, compromise or settlement of the Third Party Claim as in its sole discretion may appear advisable, and is entitled to retain counsel as in its sole discretion may appear advisable, the whole at the Indemnitor's sole cost and expense. Any settlement or other final determination of the Third Party Claim will be binding on the Indemnitor. The Acquiror Indemnified Persons Indemnitor will, at its sole cost and expense, cooperate fully with the Indemnifying Persons shall Indemnitee and its Indemnitees Representative and use commercially reasonable its best efforts to avoid production make available to the Indemnitee and its Indemnitees Representative all relevant information in its possession or under its control and take such other steps as are, in the reasonable opinion of confidential information counsel for the Indemnitee, necessary to enable the Indemnitee to conduct the defence. The Indemnitor will reimburse the Indemnitee and its Indemnitees Representative promptly and periodically for the costs of defending against the Third Party Claim (consistent with Lawincluding legal fees and expenses), and will remain responsible for any Losses the Indemnitee and its Indemnitees Representative may suffer resulting from, arising out of or relating to cause all communications among employees, counsel and others representing any party to a the Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary fullest extent provided in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax ProceedingsArticle 7.
Appears in 1 contract
Sources: Asset Purchase Agreement
Third Party Claims. Each If any Indemnity Claim is based upon any claim, demand, suit or action of any third party against Travel Systems or any of the other indemnified persons or entities or the Assets (a "Third Party Claim"), then Travel Systems, at the time it gives Owners the Notice of Claim given by Acquiror, which involves a third party (a “with respect to such Third Party Claim shall offer to Owners the option to have Owners assume the defense of the Third Party Claim”), shall which option may be resolved as follows:
exercised by Owners by written notice to Travel Systems within fifteen (a) If, within thirty (3015) days after a Notice Travel Systems gives written notice to Owners thereof. If Owners so exercises the option, then Owners shall at its own expense assume the defense of Claim is delivered the Third Party Claim, shall upon the final determination thereof fully discharge at their own expense all liability of Travel Systems and the other indemnified persons and entities with respect to the Seller RepresentativeThird Party Claim, (x) the Seller Representative produces a notice and shall be entitled, in their sole discretion and at their sole expense but without any liability of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf Travel Systems or any of the Seller Guarantors other indemnified persons or entities therefor, to compromise or settle the Third Party Claim upon terms acceptable to Owners. From the time Owners so assumes such defense and while such defense is pursued diligently and in good faith, Owners shall have no further liability for attorneys' fees or other costs of defense thereafter incurred by Travel Systems and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages other indemnified persons and entities in connection with such Third Party Claim Notice, Claim. If Owners does not exercise the Indemnifying Persons shall have the right, but not the obligation option to (i) take control of the defense and investigation of defend such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned then Travel Systems or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release any of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be other indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons persons or entities shall not have the right undertake to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) defend such Third Party Claim seeks itself. Travel Systems and/or the other persons and entities indemnified hereunder shall conduct such defense as would a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Personreasonable and prudent person to whom no indemnity were available, shall permit Owners (4at Owners's expense) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigationsuch defense, trial and defense of shall not settle or compromise such Third Party Claim and any appeal arising therefrom.
without Owners's consent (c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume but such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production of confidential information (consistent with Lawitself establish Owners's indemnity liability therefor), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.. MUTUAL RELEASES
Appears in 1 contract
Sources: Indemnity and Release Agreement (800 Travel Systems Inc)
Third Party Claims. Each Notice Upon the Purchaser becoming aware of Claim given by Acquirorany third party claim (including Tax claims), which involves action or demand, or any matter likely to give rise to a third party (a “Third Party Claim”)claim, shall be resolved as followsfor which the Seller, or the Founders may have liability hereunder or pursuant to the Founder Undertaking, the Purchaser shall:
(ai) Ifas soon as reasonably practicable, within but in no event no later than thirty (30) days after the Purchaser so becoming aware, give written notice thereof to the Seller;
(ii) not make any admission of liability, agreement, settlement or compromise with any third party in relation to any such claim or adjudication, without obtaining the prior written consent of the Seller;
(iii) take such action as the Seller may reasonably request to avoid dispute, or resist, appeal, compromise or defend a Notice claim, provided, however, that the Purchaser shall not, and shall procure that the Companies shall not, accept or pay or compromise or make any submission in respect of Claim is delivered such claims, without the Seller’s prior consent thereto;
(iv) give the Seller or its duly authorised representatives reasonable access to the personnel of the Purchaser and the Companies and to any relevant premises, accounts, documents and records within their respective power and allow the Seller and its duly authorised representatives to take copies thereof, all to enable the Seller or its duly authorised representatives to examine the grounds for and merits of such claim; and
(v) at the Seller’s request allow the Seller to handle any negotiation , dispute or litigation relating thereto with any third party and grant the Seller all authorisations and all assistance as the Seller may reasonably require to enable the Seller to defend any claim and to properly conduct any litigation resulting therefrom. The Seller’s prior consent as a condition to any settlement or compromise of a third party claim and the Seller’s right to handle, dispute and defend a third party claim shall be subject to the Seller Representativeand the Founders acknowledging in writing their liability to the Purchaser in respect thereof. Further, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume dispute and defend a third party claim that relates to matters involving Taxes, regulatory affairs, quality systems or the defense of a Third Party Claim if (1) Specific Matter IV; provided, however, that the Indemnifying Persons fail Seller shall be entitled to actively all material information regarding such claim and diligently conduct the defense of the Third Party Claim (after notice shall be entitled, at its own cost and reasonable opportunity expense, to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons participate in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates matters and to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be paid by the Seller. When disputing and defending a third party claim, the Seller shall not make any admission of liability and not settle or compromise such third party claim without obtaining the Purchaser’s prior written consent. Any failure by the Purchaser to comply with the foregoing provisions shall not relieve the Seller or the Founders of their choosingobligations hereunder or pursuant to the Founder Undertaking, defend except to the extent a failure to provide timely or adequate notice pursuant to this Section shall have adversely prejudiced the Seller or if such Third Party Claim and have the sole power to direct and control such defense failure is willful (all at the cost and expense provided that if Purchaser is aware of only some, but not all, of the Indemnifying Persons if information it is ultimately determined that would need to reasonably become aware of any misrepresentation or breach of representation or warranty, the Acquiror Indemnified Persons are entitled failure to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim provide notice hereunder shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim deemed to be made so as to preserve any applicable attorney-client or work-product privilegeswillful).
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Hill-Rom Holdings, Inc.)
Third Party Claims. Each Notice (a) If the Buyer becomes aware of Claim given any claim or potential claim by Acquiror, which involves a third party (a “Third Party Claim”)) after Completion which is likely to result in a Claim under the Fundamental Warranties or any claim under clause 12, the Buyer shall be resolved as followssoon as reasonably practicable give notice of the Third Party Claim to the Seller and shall ensure that that Seller is given access to the information referred to in Schedule 4 (Limitation of the Seller’s Liability) paragraph 9 (Third Party Claims) to investigate the Third Party Claim and, subject to paragraph 9(b) and paragraph 9(c) below:
(ai) Ifnot admit liability or make any agreement, within thirty (30) days after a Notice of settlement or compromise with any person, body or authority in relation to that Third Party Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a without written acknowledgment from the Seller Representative on behalf consent of the Seller;
(ii) take any action that that Seller Guarantors and the Sellers reasonably requests to avoid, resist, dispute, appeal, compromise or defend that Third Party Claim; and
(the “Indemnifying Persons”iii) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, proceedings relating to the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Third Party Claim, use advisers nominated by the Seller and, if the Seller requests, allow the Seller the exclusive conduct of proceedings.
(iib) employ The Buyer shall not be bound by Schedule 4 (Limitation of the Seller’s Liability) paragraph 9(a)(i) to paragraph 9(a)(iii) of this Schedule unless the Buyer and engage attorneys the relevant Target Group Member are indemnified against all reasonable costs and expenses incurred (including legal costs) in connection or as a result of their own choice (subject to the approval of Acquiror, such approval not actions required to be unreasonably withheld, conditioned taken by the Buyer or delayedthe relevant Target Group Member or the conduct of proceedings by the Seller.
(c) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and Nothing in Schedule 4 (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release Limitation of the Acquiror Indemnified Persons and provides solely for payment Seller’s Liability) paragraph 9(a) shall impose an obligation on the Buyer or the Target Group Members to do anything which would (or would be reasonably likely to) have a material adverse effect on the reputation or the financial position of monetary damages for which the Acquiror Indemnified Persons will be indemnified Buyer or any of the Buyer’s Group Members.
(d) To the extent the Seller is allowed the conduct of proceedings in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense respect of a Third Party Claim if (1) in accordance with this paragraph 9 of this Schedule, the Indemnifying Persons fail to actively and diligently conduct the defense Buyer shall be kept informed of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons all material developments at all relevant times and the Indemnifying Persons in connection with the defense of such Third Party ClaimSeller shall, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates subject to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of appropriate confidentiality undertakings, provide the Third Party Claim Notice its obligation Buyer with copies of relevant correspondence relating to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimaction, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether negotiations or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedproceedings.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Share Purchase Agreement (Time Inc.)
Third Party Claims. Each If any Indemnity Claim is based upon any claim, demand, suit or action of any third party against Purchaser or the Assets (a "Third Party Claim"), then Purchaser, at the time it gives Sellers the Notice of Claim given by Acquiror, which involves a third party (a “with respect to such Third Party Claim shall offer to Sellers the option to have Sellers or any Seller assume the defense of the Third Party Claim”), shall which option may be resolved as follows:
exercised by any Seller(s) by written notice to Purchaser within fifteen (a) If, within thirty (3015) days after a Notice Purchaser gives written notice to Sellers thereof. If any Seller or Sellers so exercise the option (the defending Seller"), then the defending Seller shall at its own expense assume the defense of Claim is delivered the Third Party Claim, shall upon the final determination thereof fully discharge at its own expense all liability of Purchaser with respect to the Third Party Claim, and shall be entitled, in its sole discretion and at its sole expense but without any liability of Purchaser therefor, to compromise or settle the Third Party Claim upon terms acceptable to the defending Seller. From the time the defending Seller Representativeso assumes such defense and while such defense is pursued diligently and in good faith, (x) the defending Seller Representative produces a notice shall have no further liability for attorneys' fees or other costs of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages defense thereafter incurred by Purchaser in connection with such Third Party Claim Notice, Claim. If no Seller exercises the Indemnifying Persons shall have the right, but not the obligation opinion to (i) take control of the defense and investigation of defend such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject then Purchaser shall undertake to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks itself. Purchaser shall conduct such defense as would a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Personreasonable and prudent person to whom no indemnity were available, shall permit Sellers (4at Sellers' expense) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigationsuch defense, trial and defense of shall not settle or compromise such Third Party Claim and any appeal arising therefrom.
without Sellers consent (c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume but such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedof itself establish Sellers' indemnity liability therefor).
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice (a) In the event of Claim given by Acquiror, which involves a third party (a “the assertion of any Third Party ClaimClaim by a Person entitled to be indemnified under this Article 11 (each, an “Indemnitee”), shall be resolved the Person allegedly required to provide indemnification protection under this Article 11 (each, an “Indemnitor”) will have the right, subject to the provisions set forth in this Section 11.4 and the Indemnitor’s prior written confirmation to the Indemnitee that such Third Party Claim is covered as follows:
(a) If, an indemnification claim under this Agreement within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice receipt of election and (y) such notice of election includes a written acknowledgment notice (a “Claim Notice”) from the Seller Representative Indemnitee, to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Seller Guarantors Indemnitee so long as such counsel is reasonably acceptable to the Indemnitee. Subject to Section 11.4(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 Sellers (Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control discretion of the Indemnitor. If the Indemnitor assumes the defense and investigation of any such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to Indemnitee will be unreasonably withheld, conditioned or delayed) to handle and defend the sameentitled, at the Indemnifying Persons’ sole 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) compromise or settle the named parties to such Third Party ClaimClaim 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, which compromise or settlement (B) the Indemnitee’s outside counsel shall have reasonably concluded it would be made only with inappropriate under applicable standards of professional conduct to have common counsel for the written consent of AcquirorIndemnitee 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 each case, in a timely manner; provided, that further, that, for the avoidance of doubt, such consent will not Claim and the prosecution and negotiation thereof shall be required if such settlement includes an unconditional release controlled by the Indemnitor subject to the other terms of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullthis Section 11.4. Notwithstanding the foregoing, the Indemnifying Persons shall not Indemnitee will have the right to defend any such 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 Claims hereunder and subject to indemnification in accordance with and subject to the terms of this Article 11. If the Indemnitor has assumed the defense of a Third Party Claim if pursuant to this Section 11.4, it will (1x) keep the Indemnifying Persons fail Indemnitee advised of the status of such Third Party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to actively the defense and diligently conduct 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) would lead to a conflict or potential conflict between the Indemnitee and the Indemnitor or (ii) such Third Party action 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 Third Party Claim could have a material adverse effect on the business, assets, Claims, condition (after notice and reasonable opportunity financial or otherwise) or results of operations of the Indemnitee.
(c) If the Indemnitor (i) does not expressly elect to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with assume the defense of such Third Party ClaimClaim within the time period and otherwise in accordance with Section 11.4(a), (3ii) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are otherwise entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming assume the defense of such Third Party Claim. Notwithstanding anything herein action pursuant to the contrarySection 11.4(b), whether or not the Indemnifying Persons shall have assumed the defense of (iii) after assuming such Third Party Claimdefense, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall fails to use commercially reasonable efforts to avoid production diligently prosecute such Claim, the Indemnitee may assume control of confidential information such defense and the reasonable costs and expenses of such defense (consistent including fees and expenses of counsel) shall be Claims hereunder, subject to indemnification in accordance with Law)and subject to the terms of this Article 11. If the Indemnitee assumes the control of such defense, then the Indemnitor shall be entitled, at its sole option and expense, to cause all communications among employees, counsel and others representing participate in any party prosecution of such Claim or any settlement negotiations with respect to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegessuch Claim.
(ed) Notwithstanding anything to the contrary in this Agreement, Section 8.1(dthe Indemnitor will not be permitted to (i) shall exclusively govern S Corporation Tax Proceedings.settle, compromise, take any corrective or remedial action, or enter into an agreed judgment or consent decree, in each case, that subjects the Indemnitee to any criminal liability, requires an admission of 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: Marketing Agreement
Third Party Claims. Each Notice (a) In the event of Claim given by Acquiror, which involves a the assertion of any third party Claim against a Person entitled to be indemnified under this Article 7 (a each, an “Third Party ClaimIndemnitee”), shall be resolved the Person allegedly required to provide indemnification protection under this Article 7 (each, an “Indemnitor”) will have the right, subject to the provisions set forth in this Section 7.6 and the Indemnitor’s prior written confirmation to the Indemnitee that such third-party Claim is covered as follows:
(a) If, an indemnification claim under this Agreement within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice receipt of election and (y) such notice of election includes a written acknowledgment notice (a “Claim Notice”) from the Seller Representative Indemnitee, to assume the defense of same at such Indemnitor’s expense, including the appointment and selection of counsel on behalf of the Seller Guarantors 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 Sellers (Indemnitor shall use commercially reasonable efforts to diligently prosecute such proceedings to a final conclusion or settle such proceedings at the “Indemnifying Persons”) that discretion of the Indemnifying Persons would be required to indemnify Indemnitor. If the Acquiror Indemnified Persons for all Damages in connection with Indemnitor assumes the defense of any such Third Party Claim Noticethird-party Claim, the Indemnifying Persons 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 have pay the right, but not reasonable costs and expenses of such defense (including reasonable attorneys’ fees and expenses) of the obligation to Indemnitee if (i) take control of the defense Indemnitor consents in writing to paying such costs and investigation of such Third Party Claimexpenses, (ii) employ 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 attorneys counsel reasonably satisfactory to the Indemnitee, in each case, in a timely manner; provided, further, that, for the avoidance of their own choice (doubt, such Claim and the prosecution and negotiation thereof shall be controlled by the Indemnitor subject to the approval other terms of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullthis Section 7.6. Notwithstanding the foregoing, the Indemnifying Persons shall not Indemnitee will have the right to defend any such third-party Claim until such time as the Indemnitor agrees to assume the defense of a Third Party Claim if (1) such Claim, and any costs or expenses incurred by the Indemnifying Persons fail Indemnitee in connection therewith will be Losses hereunder and subject to actively indemnification in accordance with and diligently conduct 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 status of such third-party Claim and the defense thereof on a reasonably current basis, (y) reasonably consult with the Indemnitee with respect to 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) would lead to a conflict or potential conflict between the Indemnitee and the Indemnitor or (ii) such Third Party action 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 third-party Claim could have a material adverse effect on the business, assets, Losses, condition (after notice financial or otherwise) or results of operations of the Indemnitee.
(c) If the Indemnitor (i) does not expressly elect to assume the defense of such third-party Claim within the time period and reasonable opportunity to cureotherwise in accordance with Section 7.6(a), (2ii) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with is not otherwise entitled to assume the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates action pursuant to a Material Customer or Material SupplierSection 7.6(b), or (6iii) after assuming such Third Party Claim is reasonably likely defense, fails to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons shall use commercially reasonable efforts to avoid production diligently prosecute such Claim, the Indemnitee may assume control of confidential information such defense and the reasonable costs and expenses of such defense (consistent including fees and expenses of counsel) shall be Losses hereunder, subject to indemnification in accordance with Law)and subject to the terms of this Article 7. If the Indemnitee assumes the control of such defense, then the Indemnitor shall be entitled, at its sole option and expense, to cause all communications among employees, counsel and others representing participate in any party prosecution of such Claim or any settlement negotiations with respect to a Third Party Claim to be made so as to preserve any applicable attorney-client or work-product privilegessuch Claim.
(ed) Notwithstanding anything to the contrary in this Agreement, Section 8.1(dthe Indemnitor will not be permitted to (i) shall exclusively govern S Corporation Tax Proceedings.settle, compromise, take any corrective or remedial action, or enter into an agreed judgment or consent decree, in each case, that subjects the Indemnitee to any criminal liability, requires an admission of 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. Each Notice of With respect to any Claim given made by Acquiror, which involves a third party Person (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to against an Indemnitee for which the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment Indemnitee will seek indemnification from the Seller Representative on behalf Indemnitor hereunder, after delivery of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party respective Claim Notice, the Indemnifying Persons Indemnitor shall have the rightbe entitled (if it so elects), but not the obligation at its own cost, risk and expense, (a) to (i) take control of the defense and investigation of such Third Party Claim, (iib) to employ and engage attorneys legal counsel of their its own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the samesame (unless the Indemnitee has been advised by counsel that there exists an actual or potential conflict of interest between the Indemnitee and counsel chosen by the Indemnitor (including one or more legal defenses or counterclaims available to it or to other indemnified parties that are different from or additional to those available to the indemnifying parties) that makes it inappropriate in the reasonable judgment of the indemnified party for the same counsel to represent both the indemnified party and the indemnifying parties, in which event the Indemnitee shall be entitled, at the Indemnifying Persons’ sole cost Indemnitor’s cost, risk and expense, to reasonable fees of not more than one separate counsel of the Indemnitee’s own choosing), and (iiic) to compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; providedthe Indemnitee, that such consent will not to be required if such settlement includes an unconditional release unreasonably delayed or withheld, unless (A) there is no finding or admission against Indemnitee of any violation of the Acquiror Indemnified Persons rights of any Person and provides solely for payment of it is not reasonably expected to have an effect on any other claims that may be made against the Indemnitee, (B) the sole relief provided is monetary damages for which that are paid in full by the Acquiror Indemnified Persons Indemnitor, and (C) the Indemnitee will be indemnified in fullhave no liability with respect to any compromise or settlement of such Claims effected without its consent. Notwithstanding After notice from the foregoing, Indemnitor to the Indemnifying Persons shall not have the right Indemnitee of its election to assume the defense of a Third Party Claim if (1) Claim, the Indemnifying Persons fail Indemnitor will not, as long as it diligently conducts such defense, be liable to actively and diligently conduct the defense Indemnitee for any fees of the Third Party Claim (after notice and reasonable opportunity other counsel or any other expenses with respect to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, except as otherwise provided in this Section 11.4(b) with respect to possible conflicts of interest between the Indemnitee and Indemnitor’s counsel. If the Indemnitor fails to notify the Indemnitee that the Indemnitor will assume the defense of such Claim within sixty (360) calendar days after 63 delivery by the Indemnitee of the Claim Notice (or such Third Party shorter period as may be expressly specified in the underlying Claim, provided that the Indemnitee promptly delivered the Claim seeks a finding Notice and underlying Claim to the Indemnitor), the Indemnitee will (upon delivering notice to such effect to the Indemnitor) have the right to undertake the defense, compromise or admission settlement of a violation such Claim on behalf of and for the account and risk of the Indemnitor and Indemnitor shall reimburse the Indemnitee for the reasonable expenses of counsel engaged by Indemnitee to defend such Claim; provided, however, that, in such event, the Indemnitee shall not settle or compromise any claim without the prior written consent of the Indemnitor, which consent shall not to be unreasonably withheld, conditioned or delayed. The Person undertaking the defense, compromise or settlement of the Claim will keep the other Parties reasonably informed of the progress of any criminal Law by an Acquiror Indemnified Personsuch defense, (4) such Third Party Claim seeks an injunction compromise or other equitable remedies in respect of an Acquiror Indemnified Person or its businesssettlement, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In and the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons Indemnitor and Indemnitee shall cooperate (at the Indemnitor’s expense) in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys respects in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons Indemnitee may, at their its own sole cost and expensecost, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything . To the extent that there is an inconsistency between this Section 11.4 and Article XII as to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party ClaimTax matter, the Acquiror Indemnified Persons provisions of Article XII shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedcontrol.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Third Party Claims. Each Notice In the event that Parent becomes aware of Claim given by Acquiror, which involves a third party claim (other than a claim that is the subject of an Agreed-Upon Loss) (each, a “Third Party Claim”) which Parent reasonably believes would result in a demand for indemnification pursuant to this ARTICLE VII, Parent shall timely notify the Stockholders’ Representative of such claim (the “Third Party Claim Notice”), and the Stockholders’ Representative shall (A) be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative entitled on behalf of the Seller Guarantors Indemnifying Parties, at its sole option and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required expense, to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the rightparticipate in, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdetermine or conduct, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, and (3B) such Third have the right to receive copies of all pleadings, notices and material communications with respect to the Third-Party Claim seeks a finding to the extent that receipt of such documents does not affect any privilege or admission of a violation confidentiality obligations relating to any Parent Indemnified Party. The failure to so notify the Stockholders’ Representative shall not relieve the Indemnifying Parties of any criminal Law by an Acquiror Indemnified PersonLiability, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates except to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event extent the Stockholders’ Representative demonstrates that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim is actually and any appeal arising therefrom, including, materially prejudiced thereby or if appropriate and related such notice shall have occurred after survival periods set forth in Section 7.1 with respect to such claims. Parent shall have the right in its sole discretion to conduct the defense of, and to settle, any Third Party Claim; provided, however, that except with the consent of the Stockholders’ Representative in writing (not to be unreasonably withheld or delayed; provided, that the parties agree that the Stockholders’ Representative’s failure to provide consent based on the amount of Losses, or whether the Indemnifying Parties have an obligation to indemnify Parent or other Parent Indemnified Parties pursuant to this Agreement, shall not, in making and of itself, be considered unreasonable), no settlement of any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and shall be determinative of the amount of Losses relating to such matter or whether the Parent Indemnified Parties are entitled to indemnification hereunder with respect thereto. In the event that the Stockholders’ Representative has consented in writing to any appeal arising therefrom.
(c) Notwithstanding anything such settlement, the Indemnifying Parties shall have no power or authority to object under any provision of this ARTICLE VII to the contrary herein, if amount of any claim by Parent against the Escrow Fund with respect to such settlement. Neither the Stockholders’ Representative nor any Indemnifying Persons do not assume such defense and investigation Party may settle or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against compromise any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, relevant Parent Indemnified Party(ies) (which consent shall not be unreasonably withheld, conditioned withheld or delayed); provided that, notwithstanding the foregoing, any such Parent Indemnified Party shall be entitled to withhold its consent, in its sole discretion, to any proposed settlement or compromise that (i) does not include a provision whereby the plaintiff or claimant in the matter releases such Parent Indemnified Party from all Liabilities with respect thereto, (ii) would obligate such Parent Indemnified Party to pay an amount related thereto in excess of the amount then available for indemnification pursuant to this ARTICLE VII or (iii) would reasonably be expected to have an adverse impact on the reputation (business or otherwise) of Parent or any of its Affiliates.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Third Party Claims. Each Notice If any Indemnified Party receives notice of the assertion of any Claim given or the commencement of any Action by Acquiror, which involves a third party with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party ClaimNotice”), ) shall promptly be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered given to the Seller RepresentativeStakeholders’ Representative if the Third Party Notice is being given by a Parent Indemnified Party and to Parent if the Third Party Notice is being given by an Equityholder Indemnified Party, which Third Party Notice shall specify in reasonable detail, to the extent known, the amount of the Claim, the date (x) the Seller Representative produces a notice of election and (yif any) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors item was incurred or suffered and the Sellers basis for indemnification under this Article VIII, and will include copies of all notices and documents (including court papers) served on or received by the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages Party in connection with such Claim. The failure of any Indemnified Party to give timely notice hereunder shall not affect such Indemnified Party’s rights to indemnification hereunder, except to the extent such delay or failure actually and materially prejudices the Indemnifying Parties’ ability to defend such Claim or Action. After receipt of a Third Party Claim Notice, the Indemnifying Persons Parties shall have the right, but not the obligation, by providing written notice to the Indemnified Party acknowledging their obligation to indemnify the Indemnified Party pursuant to Section 8.1, to (i) take control of the defense and investigation of such Third Party ClaimClaim or Action, (ii) employ and engage attorneys of their his own choice (subject to the approval of Acquirorthe Indemnified Party, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying PersonsParties’ sole cost and expense, and (iii) compromise or settle such Third Party Claimclaim, which compromise or settlement shall be made only with the written consent of Acquirorthe Indemnified Party, such consent not to be unreasonably withheld, conditioned or delayed; provided, that such consent will not be required (other than with respect to an item relating to Taxes) if such settlement includes an unconditional release of the Acquiror Indemnified Persons Party and otherwise provides solely for payment of monetary damages for which the Acquiror Indemnified Persons Party will be indemnified in full. Notwithstanding The Indemnified Party shall, at the foregoing, expense of the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure)Parties, (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, respects with the Indemnifying Persons Parties and their attorneys in the investigation, trial and defense of such Third Party Claim or Action and any appeal arising therefrom, including, if reasonably appropriate in the opinion of the Indemnifying Party’s counsel, and related to such the Third Party ClaimClaim in question, in making at the sole cost and expense of the Indemnifying Party any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons Party may, at their its own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim or Action and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein; provided, however, that if the Indemnifying Persons do Parties elect not to assume such defense and investigation or does do not acknowledge in writing within a reasonable period (in light of the circumstances), not to exceed thirty (30) days days, after receipt of the Third Party Claim Notice its (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of such Indemnified Party to defend such claim) their obligation to indemnify the Acquiror Indemnified Persons Party against any Damages Losses arising from such Third Action, the Indemnified Party Claim, then may (upon delivering notice to such effect to the Acquiror Indemnified Persons shall have the right to Indemnifying Parties) retain separate counsel of their choosing, and defend such Third Party Claim and have the sole power to direct and control such defense or Action (all at the cost and expense of the Indemnifying Persons if it is ultimately determined Parties); provided that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that Indemnifying Parties shall have the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming participate therein at their own sole cost and expense. Notwithstanding the Indemnifying Parties’ election to assume the defense of such Third Claim or Action or anything to the contrary herein, the Indemnified Party Claimshall have, upon giving prior written notice to the Indemnifying Parties, the right to employ separate counsel and to participate in the defense of such Action, and the Indemnifying Parties shall bear the reasonable fees, costs and expenses of such separate counsel for the Indemnified Party in each jurisdiction if, but only if, the Indemnified Party shall have reasonably concluded in good faith that (x) an actual or potential conflict of interest (including one or more legal defenses or counterclaims available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Parties) makes it inappropriate in the reasonable judgment of the Indemnified Party (upon and in conformity with the advice of counsel) for the same counsel to represent both the Indemnified Party and the Indemnifying Parties or (y) the claim seeks nonmonetary relief which, if granted, could materially and adversely affect the Indemnified Party or its Affiliates. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons Party shall have assumed the defense of such a Third Party Claim, the Acquiror Indemnified Persons Party shall not settle, settle or compromise or pay such any Third Party Claim for which they it seeks indemnification hereunder without the prior written consent of the Indemnifying PersonsParty, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) . Notwithstanding anything to the contrary in contained herein, this Agreement, Section 8.1(d8.3(b) shall exclusively govern S Corporation Tax Proceedingsnot apply with regard to the Specified Litigation Matters or reimbursement of an amount paid with respect to Section 8.1(a)(iv) or 8.1(a)(v).
Appears in 1 contract
Sources: Merger Agreement (Perrigo Co)
Third Party Claims. Each Notice (a) Following the delivery of a Claim given by Acquiror, which involves Objection with respect to a third party claim (a “Third Party Claim”), shall be resolved as follows:
(a) Ifthe Indemnifying Person may, within thirty (30) days after a Notice upon written acknowledgment without qualification of Claim is delivered the right to the Seller RepresentativeIndemnified Person to be indemnified for Damages incurred in connection with such Third Party Claim, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf be entitled to appoint counsel of the Seller Guarantors and Indemnifying Person’s choice at the Sellers (the “Indemnifying Persons”) that expense of the Indemnifying Persons would be required Person to indemnify represent the Acquiror Indemnified Persons for all Damages Person and any others the Indemnified Person may reasonably designate in connection with such Third Party Claim Notice, (in which case the fees and expenses of any separate counsel retained by any Indemnified Person shall not be Damages). The Indemnifying Persons Person shall have not consent to the right, but not entry of any judgment or enter into any settlement without the obligation to (i) take control consent of the defense and investigation of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of AcquirorIndemnified Person, such approval consent not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror The Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all participate at the cost and its own expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming in the defense of such Third Party Claim. Notwithstanding anything herein to the contraryasserted liability, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons but shall not settle, be entitled to settle or compromise or pay such Third Party Claim for which they seeks indemnification hereunder asserted liability without the prior written consent of the Indemnifying PersonsPerson, which such consent shall not to be unreasonably withheld, conditioned or delayed.
(db) The Acquiror Indemnified Persons and If the Indemnifying Persons Person has the right to and elects to defend any Third Party Claim, the Indemnifying Person shall use commercially reasonable efforts (i) promptly submit to avoid production the Indemnified Person copies of confidential information all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith, (consistent ii) permit the Indemnified Person and its counsel to confer on the conduct of the defense thereof, and (iii) to the extent practicable, permit the Indemnified Person and its counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties hereto agree to cooperate fully with Laweach other in connection with the defense, negotiation or settlement of any Third Party Claim, including by providing access to each other’s relevant business records and other documents and employees.
(c) Notwithstanding the provisions of Section 9.6(a), and the Indemnifying Person shall not be entitled to cause all communications among employees, counsel and others representing assume the defense of any party to a Third Party Claim that (i) relates to be made so as to preserve any applicable attorney-client or work-product privilegesarises in connection with a criminal action or an action brought by a Governmental Entity, or (ii) seeks an injunction or equitable relief against the Indemnified Person.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice 6.1 In respect of Claim given by Acquirorany fact, which involves matter, event or circumstance concerning a third party which gives rise to a Claim and which is notified to the Warrantors pursuant to paragraph 2.2 above (a “Third Party Claim”)) Newco 2 shall (and shall procure, shall be resolved as follows:
(a) Ifwhere relevant, within thirty (30) days after a Notice of Claim is delivered to that the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf relevant member of the Seller Guarantors and Getty Images’ Group shall):
6.1.1 not settle or compromise the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, or make any admission in respect thereof which will materially and adversely affect the Indemnifying Persons shall have Warrantors’ liability without the right, but not the obligation to (i) take control prior written agreement of the defense and investigation of such Third Party Claim, Warrantors (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval which shall not to be unreasonably withheld, conditioned withheld or delayed) as to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for any reasonable ways in which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) might be avoided, disputed, resisted, mitigated, settled, compromised, defended or appealed;
6.1.2 allow the Indemnifying Persons fail Warrantors and their professional advisers to actively and diligently conduct the defense of investigate the Third Party Claim (after notice including whether and reasonable opportunity to cure)what extent any amount is payable in respect thereof) and make available to the Warrantors and their professional advisers, at the Warrantors’ expense, such information and assistance (2including access to properties, management, records, papers, documents and data) as they may reasonably require; subject always that Newco 2 and/or Getty Images shall not be obliged to produce any record, paper, document or data if Newco 2 or Getty Images, as the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons case may be, would be entitled in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies legal proceedings to claim legal privilege in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates the same;
6.1.3 have sole conduct of all proceedings relating to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation in the name of Newco 2 and/or, where appropriate, of any member of the Getty Images’ Group and to indemnify appoint solicitors or other professional advisers.
6.2 The Warrantors shall, acting reasonably, at the Acquiror Indemnified Persons Warrantors’ expense, take all such action and provide Newco 2 and/or other member of the Getty Images Group with all such information and assistance as Newco 2 and/or other member of the Getty Images Group may reasonably request in order for Newco 2 and/or other member of the Getty Images Group to investigate, negotiate, avoid, dispute, resist, mitigate, compromise, settle, defend or appeal against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons .
6.3 Newco 2 and Getty Images shall have the right take reasonable steps to retain separate counsel of their choosing, defend such deal with any Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for within a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayedreasonable time period.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror(a) In the event that any Rights Holder Indemnitee desires to make a claim against an Indemnifying Party (which term shall be deemed to include all Indemnifying Parties if more than one) or in the event that any Parent Indemnitee desires to make a claim against the Escrowed Funds in connection with any third-party litigation, arbitration, action, suit, proceeding, claim or demand at any time instituted against or made upon it for which involves a third party it may seek indemnification hereunder (a “Third Third-Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice the Indemnified Person will promptly notify the Indemnification Control Person of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Third-Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control and of the defense and investigation its claims of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only indemnification with the written consent of Acquirorrespect thereto; provided, that failure to promptly give such consent notice will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, relieve the Indemnifying Persons shall not Party of its indemnification obligations under this Section 9.3, except to the extent, if any, that the person or persons represented by the Indemnification Control Person have actually been prejudiced thereby.
(b) The Indemnification Control Person will have the right to assume the defense of a Third the Third-Party Claim if with counsel of its choice reasonably satisfactory to the Indemnified Person by written notice to the Indemnified Person within twenty (120) days after the Indemnifying Persons fail to actively and diligently Indemnification Control Person has received notice of the Third-Party Claim; provided, however, that the Indemnification Control Person must conduct the defense of the Third Third-Party Claim (after notice actively and reasonable opportunity diligently thereafter in order to cure)preserve the rights of the person or persons represented by the Indemnification Control Person in this regard; and provided, (2) further, that the Acquiror Indemnified Persons have received advice from Person may retain separate co-counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons at its sole cost and the Indemnifying Persons expense and participate in connection with the defense of such Third the Third-Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything The Indemnification Control Person will not consent to the contrary herein, if entry of any judgment or enter into any settlement with respect to the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Third-Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnified Person (which consent will not be unreasonably conditioned, withheld or delayed) unless the judgment or proposed settlement (i) includes an unconditional release of all liability of each Indemnified Person with respect to such Third-Party Claim, and (ii) involves only the payment of money damages that are fully covered by the Indemnifying PersonsParty (or fully covered by amounts paid pursuant to Section 9.4 by distribution of amounts to Parent Indemnitees from Escrowed Funds) and does not impose an injunction or other equitable relief upon the Indemnified Person. So long as the Indemnification Control Person has assumed and is conducting the defense of the Third-Party Claim in accordance with Section 9.3(b) above, the Indemnified Person 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 Indemnification Control Person (which consent will not be unreasonably conditioned, withheld or delayed).
(d) In the event that the Indemnification Control Person fails to assume the defense of the Third-Party Claim in accordance with Section 9.3(b) above, (i) the Indemnified Person may defend against, and consent to the entry of any judgment or enter in to any settlement with respect to, the Third-Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Person need not consult with, or obtain any consent from, the Indemnification Control Person in connection therewith), and (ii) the Indemnifying Party will remain responsible (or, as applicable, the Parent Indemnitee may claim and recover from the Escrowed Funds) for any Damages the Indemnified Person may suffer as a result of such Third-Party Claim to the extent subject to indemnification under this Article 9.
(e) Notwithstanding the foregoing, Parent and the Surviving Corporation shall be responsible for the prosecution and defense of any claims relating to the Intellectual Property of the Company (collectively, the “Parent-Handled Claims”). Parent and the Surviving Corporation shall pursue in good faith, through counsel of their selection, the prosecution or defense of all Parent-Handled Claims until such time, if any, that Parent shall elect not to pursue indemnification with respect to such Third-Party Claim.
(f) Parent shall, to the extent that Parent and the Surviving Corporation are entitled to indemnification for Damages pursuant to this Article 9 and it could reasonably be expected that Parent may recover a substantial portion of the Damages relating to such Parent-Handled Claim pursuant to this Article 9, (i) provide the Shareholder Representative with access to appropriate employees of Parent and the Surviving Corporation for the purpose of discussing matters relating to Parent-Handled Claims as the Shareholder Representative may from time to time reasonably request, (ii) permit the Shareholder Representative, upon its reasonable request, to participate in the process of any settlement or other resolution of any Parent-Handled Claims pursuant to this Article 9; and (iii) secure the written consent of the Shareholder Representative before settling any Parent-Handled Claim (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned).
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
Third Party Claims. Each Notice of Claim given In the event that any Buyer Indemnitee desires to make a claim against any Seller under Section 12.1 above in connection with any action, suit, proceeding or demand at any time instituted against or made upon such Buyer Indemnitee by Acquiror, which involves a any third party for which such Buyer Indemnitee may seek indemnification hereunder (a “Third Party Claim”), such Buyer Indemnitee shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a promptly deliver notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticeand of such Buyer Indemnitee’s claim for indemnification with respect thereto to the Seller Representatives or, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of if such Third Party Claim is an Individual Seller Claim, (ii) employ and engage attorneys of their own choice (subject to the approval individual Seller against whom such Individual Seller Claim is made, provided, that the failure by such Buyer Indemnitee to notify the Seller Representatives of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle any such Third Party Claim or any individual Seller of any Individual Seller Claim, which compromise or settlement as the case may be, shall be made only with the written consent of Acquiror; provided, that not adversely affect such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will Buyer Indemnitee’s rights to be indemnified in fullhereunder except to the extent that the indemnifying Seller or Sellers are materially prejudiced thereby. Notwithstanding Within forty-five (45) days (or, where circumstances require, such shorter time as the foregoing, Buyer Indemnitee may reasonably specify as being required under the Indemnifying Persons shall not have the right to assume the defense circumstances) after receipt of notice of a Third Party Claim if (1) from a Buyer Indemnitee, the Indemnifying Persons fail to actively and diligently conduct Seller Representatives or the defense individual Seller, as the case may be, may notify such Buyer Indemnitee of the Third Party Claim (after notice and reasonable opportunity indemnifying Sellers’ or Seller’s election to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with assume the defense of such Third Party Claim, in which case the indemnifying Sellers or Seller shall have the authority to negotiate, compromise and settle such Third Party Claim, if the following conditions are satisfied:
(3i) the Seller Representatives or the individual Seller, as the case may be, shall have confirmed in writing that the indemnifying Sellers or Seller are obligated hereunder to indemnify the Buyer Indemnitee with respect to such Third Party Claim;
(ii) the Buyer Indemnitee shall not have given the Seller Representatives or the individual Seller, as the case may be, written notice that it has determined, in the exercise of its reasonable discretion, that a conflict of interest makes separate representation by the Buyer Indemnitee’s own counsel advisable; and
(iii) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks involves only money damages and does not seek an injunction or other equitable remedies relief. If the indemnifying Sellers, in respect the case of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, or the Acquiror Indemnified Persons shall cooperate in all reasonable respectsindemnifying Seller, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense case of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party which is an Individual Seller Claim. Notwithstanding anything herein , elect to the contrary, whether or not the Indemnifying Persons shall have assumed assume the defense of such Third Party Claim, such indemnifying Sellers or Seller shall be entitled at their own expense to conduct and control the Acquiror Indemnified Persons shall not settle, compromise or pay defense and settlement of such Third Party Claim for which they seeks indemnification hereunder through counsel of their own choosing; provided that the Buyer may participate in the defense of such Third Party Claim with its own counsel at its own expense. If the Seller Representatives or the individual Seller, as the case may be, fail to notify the Buyer within forty-five (45) days after receipt of the Buyer’s notice of a Third Party Claim, the Buyer shall be entitled to assume the defense of such Third Party Claim at the expense of the indemnifying Sellers or Seller, provided that the Buyer may not settle any Third Party Claim without the prior written consent of the Indemnifying PersonsSeller Representatives or, if such Third Party Claim is an Individual Seller Claim, the individual Seller, which consent shall not be unreasonably withheld, conditioned withheld or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to In the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) event that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such any Third Party Claim Noticeis asserted or commenced against an Indemnitee with respect to which such Indemnitee is entitled to indemnification under this Article VIII, the Indemnifying Persons Indemnitee shall: (A) promptly notify the other Party of its existence, setting forth in writing with reasonable specificity the facts and circumstances of which such Indemnitee received notice; and (B) specify the basis hereunder upon which the Indemnitee's Claim for indemnification is asserted. Any notice of a Third Party Claim delivered by a Buyer Indemnitee to Sellers' Representative shall satisfy any obligation of such Buyer Indemnitee to provide notice to any of Sellers pursuant to this Section 8.4.
(b) Except as herein provided, the Indemnitee shall not, and the Party from whom indemnification is sought (the "Indemnitor") shall, have the rightright to contest, but not the obligation to (i) take control of the defense and investigation of such Third Party Claimdefend, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise litigate or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively is so tendered and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of thereafter the Third Party Claim Notice Indemnitor accepts such tender and acknowledges in writing without qualification its indemnification obligation hereunder, subject only to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claimlimitations on indemnification set forth in this Agreement, then the Acquiror Indemnified Persons including Section 8.3 and Section 8.5. The Indemnitee shall have the right to retain separate be represented by counsel of their choosingat its own expense in any such contest, defense, litigation or settlement conducted by the Indemnitor. The Indemnitor shall lose its right to contest, defend, litigate and settle the Third Party Claim if it shall fail to diligently contest the Third Party Claim. So long as the Indemnitor has not lost its right to contest, defend, litigate and settle as herein provided, the Indemnitor shall have the right to contest, defend such and litigate the Third Party Claim and shall have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a enter into any settlement of any Third Party Claim shall not be adversely affected by assuming the defense Claim; provided, that such settlement includes an unconditional written release from all liability in respect of such Third Party Claim. Notwithstanding anything herein to ; provided, further, that the contrary, whether or Indemnitor may not the Indemnifying Persons shall have assumed the defense enter into any settlement of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such any Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
) of the Indemnitee if pursuant to or as a result of such settlement: (dA) injunctive or other equitable relief would be imposed against the Indemnitee; (B) such settlement would or could reasonably be expected to lead to any liability or create any financial or other obligation on the part of the Indemnitee; or (C) such settlement would adversely affect the conduct of the Business. The Acquiror Indemnified Persons and the Indemnifying Persons Indemnitor shall use commercially reasonable efforts not be entitled to avoid production assume control of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnitee if: (X) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment or allegation; (Y) the Third Party Claim seeks injunctive or other equitable relief, or Buyer reasonably believes that the Third Party Claim, if adversely determined, would impair in any material respect the financial condition, business, operations, reputation or prospects of Buyer; or (Z) the interests of the Indemnitee in the Third Party Claim is or can reasonably be expected to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything adverse to the contrary interests of the Indemnitor. If the Indemnitee has assumed control of the defense of a Third Party Claim pursuant to the foregoing sentence, it shall not agree to any settlement without the consent of the Indemnitor (which consent shall not be unreasonably withheld, conditioned or delayed), provided Indemnitor has acknowledged in writing without qualification its indemnification obligation hereunder, subject only to the limitations on indemnification set forth in this Agreement, including Section 8.1(d8.3 and Section 8.5. Subject to any applicable limitations set forth in Section 8.3 and Section 8.5, all expenses (including attorneys' fees) incurred by the Indemnitor in connection with the foregoing shall exclusively govern S Corporation Tax Proceedingsbe paid by the Indemnitor. If an Indemnitee is entitled to indemnification against a Third Party Claim, and the Indemnitor fails to accept a tender of the defense of a Third Party Claim pursuant to this Section 8.4(b), or if, in accordance with the foregoing, the Indemnitor shall lose its right to contest, defend, litigate and settle such a Third Party Claim, the Indemnitee shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in reasonable good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnitee deems fair and reasonable. If, pursuant to the preceding sentence, the Indemnitee so contests, defends, litigates or settles a Third Party Claim for which it is entitled to indemnification hereunder, the Indemnitee shall be reimbursed by the Indemnitor for the reasonable attorneys' fees and other expenses of contesting, defending, litigating and settling the Third Party Claim which are incurred from time to time, promptly following the presentation to the Indemnitor of itemized bills for such attorneys' fees and other expenses, subject, however, to any applicable limitations set forth in Section 8.3 and Section 8.5. The Indemnitor and Indemnitee shall reasonably cooperate with one another in the contest, defense or litigation of any Third Party Claim.
(c) Sellers' Representative shall represent Sellers in all matters related to Third Party Claims and, in accordance with Article IX, shall control all decisions to be made by or otherwise concerning Sellers with respect to any Third Party Claims.
Appears in 1 contract
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a If any third party shall notify a Purchaser Indemnitee with respect to any matter (a “Third Party Claim”)) that may give rise to a claim for indemnification by the Purchaser Indemnitee against the Stockholder Representative with respect to Closing Date Indebtedness or Transaction Expenses under this ARTICLE X, then the Purchaser Indemnitee shall be resolved as follows:
(a) Ifpromptly notify the Stockholder Representative thereof in writing; provided, within thirty (30) days after a Notice however, that no delay on the part of Claim is delivered the Purchaser Indemnitee in notifying the Stockholder Representative shall relieve the Stockholder Representative from any obligation hereunder except to the Seller Representative, (x) extent the Seller Stockholders shall have been materially prejudiced as a result of such failure. The Stockholder Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from will have the Seller Representative on behalf of right to defend the Seller Guarantors and Purchaser Indemnitee against the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, with counsel of its choice reasonably satisfactory to the Indemnifying Persons shall have the right, but not the obligation to Purchaser Indemnitee so long as (i) take control the Stockholder Representative notifies the Purchaser Indemnitee in writing, within five (5) Business Days after the Purchaser Indemnitee has given notice of the Third Party Claim, that the Stockholder Representative will assume the defense and investigation of such the Third Party Claim, (ii) employ and engage attorneys of their own choice (subject the Stockholder Representative provides the Purchaser Indemnitee with evidence reasonably acceptable to the approval of AcquirorPurchaser Indemnitee that the Stockholder Representative will have the financial resources to defend against the Third Party Claim and fulfill the Stockholder Representative’s indemnification obligation hereunder, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if involves only money damages and does not seek an injunction or other equitable relief, (1iv) the Indemnifying Persons fail Stockholder Representative expressly agrees in writing to actively the Purchaser Indemnitee that, as between the two, the Stockholder Representative is solely obligated to satisfy and diligently conduct discharge the claim and (v) the Stockholder Representative conducts the defense of the Third Party Claim (after notice actively and reasonable opportunity to cure)diligently. Notwithstanding the foregoing, (2) if the Acquiror Indemnified Persons have received Purchaser Indemnitee reasonably determines based on the advice from of counsel that an actual or potential there may be a conflict exists between the Acquiror Indemnified Persons positions of the Stockholder Representative and the Indemnifying Persons Purchaser Indemnitee in connection with conducting the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding Action or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not that there may be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related legal defenses available to such Third Party ClaimPurchaser Indemnitee different from or in addition to those available to the Stockholder Representative, in making any counterclaim against then counsel for the third party claimant, or any cross complaint against any Person, in each casePurchaser Indemnitee shall be entitled to conduct the defense to the extent necessary to protect the interests of the Purchaser Indemnitee, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefromStockholder Representative.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Nordson Corp)
Third Party Claims. Each Notice (i) In the event either party becomes aware of Claim given by Acquiror, which involves a third third-party claim (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf regarding pre-Closing operations of the Seller Guarantors Business, such party shall notify the other party of such claim, and the Sellers Company shall have the right (but not the “Indemnifying Persons”obligation) that to assume the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with defense of such Third Party Claim Noticeand to retain (at the Company’s expense) counsel of its choice, reasonably acceptable to Acquirer, to represent Acquirer, provided, however, that this option shall not be available to the Indemnifying Persons shall have the right, but not the obligation to Company for Third Party Claims (i) take control initiated by any of the then fifteen major customers and suppliers of the Business, (ii) which may result in criminal proceedings, injunctions or other equitable remedies in respect of Acquirer or its Affiliates, or (iii) also involves Acquirer or its Affiliates as a party and counsel to the Company determines in good faith that joint representation would give rise to a conflict of interest, for which defense shall be assumed by Acquirer with the right to retain (at the Company’s expense) counsel of its choice, reasonably acceptable to the Company. The Company shall have ten (10) days from the receipt of the Notice of Claim to notify Acquirer whether or not it desires to defend such Third Party Claim failing which the Company shall be deemed to have waived such option. The party assuming defense of a Third Party Claim is hereinafter referred to as the “Controlling Party” and investigation the other party as the “Co-Party”.
(ii) In defending the Third Party Claim, the Controlling Party shall act in good faith and use commercially reasonable means and defenses available to it given due consideration to the interests of Acquirer. The Co-Party shall take such actions as reasonably necessary or appropriate under the circumstances to cooperate with the Controlling Party and its counsel in defending such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to . The Controlling Party shall keep the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Co-Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release reasonably informed of the Acquiror Indemnified Persons and provides solely for payment development of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fullunderlying claim. Notwithstanding In the foregoingcase where the Acquirer is the Co-Party, the Indemnifying Persons Co-Party shall not have the right to assume participate, at its sole cost and expense in the defense of a Third Party Claim if using its own counsel (1unless (x) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Controlling Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons shall not have received advice from employed counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, Claim after ten (310) days notice; or (y) such Third Co-Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies shall have determined in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates good faith that joint representation would give rise to a Material Customer or Material Supplier, or (6) conflict of interest; in any of the foregoing events such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not fees and expenses shall be not be fully indemnified hereunderborne by the Controlling Party).
(biii) In Neither the event that Co-Party nor the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Controlling Party Claimshall conclude any settlements, the Acquiror Indemnified Persons shall cooperate compromises, agreements or withdrawals in all reasonable respectsresponse to any claims, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimantverifications, or any cross complaint against any Person, legal or administrative proceedings in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if which it is ultimately determined that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not may be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder involved without the prior written consent of the Indemnifying Personsother party, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons in particular with respect to the settlement of disputes with customers, for which customary practice and the Indemnifying Persons commercial relationship 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 Claim to be made so as to preserve any applicable attorney-client or work-product privilegestaken into account.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice of Should any Claim given by Acquirorbe made or suit or proceeding be instituted against any Purchaser Indemnitee, which, if prosecuted successfully, would be a matter for which involves a third party such Purchaser Indemnitee is entitled to indemnification pursuant to Section 7.2 (a “Purchaser Third Party Claim”), Purchaser shall be resolved as follows:
notify Seller within five (a) If, within thirty (305) days after a Notice Purchaser’s receipt of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf notification of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation of such Purchaser Third Party Claim, including a description of the factual basis of the Purchaser Third Party Claim and shall indicate the amount of the Damages. Thereafter, Purchaser shall promptly deliver to Seller copies of all notices and documents (including court papers) received by Purchaser relating to the Purchaser Third Party Claim. Seller shall be entitled to participate in the defense of the Purchaser Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by Seller, if Seller gives written notice to Purchaser of its election to assume the defense of such Purchaser Third Party Claim within ten (10) days after Seller receives notice of such claim from Purchaser; provided, however, that Seller shall not be entitled to assume the defense of any Claim related to, either directly or indirectly, (i) the Program Technology or any intellectual property acquired by Purchaser in connection with this Agreement, (ii) employ and engage attorneys criminal liability, (iii) in which equitable relief is sought against a Purchaser Indemnitee or (iv) with respect to which the potential Damages (estimated in good faith by the Purchaser Indemnitee) could be reasonably expected to exceed 200% of their own choice (subject the then-existing balance of the Indemnification Cap. If Seller assumes the defense of a Purchaser Third Party Claim, Seller may not consent to the approval entry of Acquiror, such approval any judgment or enter into any settlement with respect to the Purchaser Third Party Claim without the prior written consent of the Purchaser Indemnitee (not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and if (iiiA) compromise or settle such Third Party Claim, which compromise judgment or settlement shall be made only with the written consent of Acquiror; provided, that such consent will does not be required if such settlement includes include as an unconditional release of term thereof the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right giving by each claimant or plaintiff to assume the defense each Purchaser Indemnitee of a Third Party Claim if (1) the Indemnifying Persons fail full release from all liability in respect to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Purchaser Third Party Claim, (3B) such Third Party Claim seeks a judgment or settlement would result in the finding or admission of a any violation of any criminal Law by an Acquiror Indemnified PersonPurchaser or the rights of any person, (4C) the sole relief provided is anything other than monetary damages or (D) as a result of such Third Party Claim seeks an injunction consent or settlement, injunctive or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, relief would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim imposed against the third party claimant, or any cross complaint against any Person, in each casePurchaser Indemnitee. Purchaser will cooperate, at the expense of Seller, as Seller may reasonably request in investigating, defending and, subject to the Indemnifying Persons. The Acquiror Indemnified Persons mayterms set forth above, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of settling such Purchaser Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything Claim. If Seller elects not to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such defend a Purchaser Third Party Claim, then the Acquiror Indemnified Persons shall have the right is not permitted to retain separate counsel of their choosing, defend such Purchaser Third Party Claim and have or fails to notify Purchaser of its election as herein provided, Purchaser may pay, compromise, settle or defend such Purchaser Third Party Claim at the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons Seller if it Seller is ultimately determined to be liable to Purchaser hereunder, provided, however, that the Acquiror Indemnified Persons are entitled to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of no such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, payment in compromise or pay such Third Party Claim for which they seeks indemnification hereunder settlement of, or other compromise or settlement of, may be effected by Purchaser without the prior written Seller’s consent of the Indemnifying Persons, (which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons ). In any event, Seller shall use commercially reasonable efforts be entitled, at its expense, to avoid production participate in any defense of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a such Purchaser Third Party Claim with the consent of Purchaser, which shall not be unreasonably withheld, conditioned or delayed. Should any Claim be made or suit or proceeding be instituted against any Seller Indemnitee, which, if prosecuted successfully, would be a matter for which such Seller Indemnitee is entitled to indemnification pursuant to Section 7.3 (a “Seller Third Party Claim”), Seller shall notify Purchaser within twenty (20) days after Seller’s receipt of notification of the Seller Third Party Claim, including a description of the factual basis of the Seller Third Party Claim and shall indicate the amount of the Damages. Thereafter, Seller shall promptly deliver to Purchaser copies of all notices and documents (including court papers) received by Seller relating to the Seller Third Party Claim. Purchaser shall be entitled to participate in the defense of the Seller Third Party Claim and, if it so chooses, to assume the defense thereof at its own expense with counsel selected by Purchaser, if Purchaser gives written notice to Seller of its election to assume the defense of such Seller Third Party Claim within five (5) days after Purchaser receives notice of such claim from Seller; provided, however, that Purchaser shall not be entitled to assume the defense of any Claim related to, either directly or indirectly, (i) criminal liability, (ii) in which equitable relief is sought against a Seller Indemnitee or (iii) with respect to which the potential Damages (estimated in good faith by the Seller Indemnitee) could be reasonably expected to exceed 200% of the then-existing balance of the Indemnification Cap. If Purchaser assumes the defense of a Seller Third Party Claim, Purchaser may not consent to the entry of any judgment or enter into any settlement with respect to the Seller Third Party Claim without the prior written consent of the Seller Indemnitee (not to be made so unreasonably withheld or delayed) if (A) such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to preserve each Seller Indemnitee of a full release from all liability in respect to such Seller Third Party Claim, (B) such judgment or settlement would result in the finding or admission of any applicable attorney-client violation of Law by Seller or work-product privileges.
the rights of any person, (eC) Notwithstanding the sole relief provided is anything other than monetary damages or (D) as a result of such consent or settlement, injunctive or other equitable relief would be imposed against the Seller Indemnitee. Seller will cooperate, at the expense of Purchaser, as Purchaser may reasonably request in investigating, defending and, subject to the contrary terms set forth above, settling such Seller Third Party Claim. If Purchaser elects not to defend a Seller Third Party Claim, is not permitted to defend such Seller Third Party Claim or fails to notify Seller of its election as herein provided, Seller may pay, compromise, settle or defend such Seller Third Party Claim at the sole cost and expense of Purchaser if Purchaser is determined to be liable to Seller or Seller Indemnitee hereunder, provided, however, that no such payment in this Agreementcompromise or settlement of, Section 8.1(d) or other compromise or settlement of, may be effected by Seller without the Purchaser’s consent (which shall exclusively govern S Corporation Tax Proceedingsnot be unreasonably withheld or delayed). In any event, Purchaser shall be entitled, at its expense, to participate in any defense of such Seller Third Party Claim with the consent of Seller, which shall not be unreasonably withheld.
Appears in 1 contract
Third Party Claims. Each Notice Promptly after receipt by any Purchaser Party or Company Party (in either case an “Indemnified Person”) of Claim given by Acquirornotice of any demand, claim, or circumstances which involves would or might give rise to a third party (a “Third Party Claim”claim or the commencement of any Action in respect of which indemnity may be sought pursuant to Section 4.7(a), such Indemnified Person shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to promptly notify the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors indemnifying party in writing and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of indemnifying party may assume the defense and investigation thereof, including the employment of counsel reasonably satisfactory to such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expenseIndemnified Person, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with assume the written consent payment of Acquirorall fees and expenses; provided, however, that such consent will not be required if such settlement includes an unconditional release the failure of any Indemnified Person so to notify the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons indemnifying party shall not have relieve the right indemnifying party of its obligations hereunder except to assume the defense of a Third Party Claim if (1) extent that the Indemnifying Persons fail indemnifying party is actually and materially and adversely prejudiced by such failure to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure)notify. In any such Action, (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate its own counsel, but the fees and expenses of such counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all shall be at the cost and expense of such Indemnified Person unless (i) the Indemnifying Persons if it is ultimately determined that indemnifying party and the Acquiror Indemnified Persons are entitled Person shall have mutually agreed to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right retention of such counsel, (ii) the indemnifying party shall have failed promptly to indemnification for a Third Party Claim shall not be adversely affected by assuming assume the defense of such Third Party Claim. Notwithstanding anything herein Action and to employ counsel reasonably satisfactory to such Indemnified Person in such Action, or (iii) in the contraryreasonable judgment of counsel to such Indemnified Person, whether representation of both parties by the same counsel would be inappropriate due to actual or not potential differing interests between them; provided, that the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons indemnifying party shall not settle, compromise or pay such Third Party Claim be liable for which they seeks indemnification hereunder the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons. The indemnifying party shall not be liable for any settlement of any Action effected without the prior its written consent of the Indemnifying Personsconsent, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. Without the prior written consent of the Indemnified Person, the indemnifying party shall not effect any settlement of any pending or threatened Action in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising out of such Action.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pathfinder Bancorp, Inc.)
Third Party Claims. Each Notice of Claim given by Acquiror, which involves a third party (a “Third Party Claim”), shall be resolved as follows:
(a) If, within thirty (30) days after a Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a If ▇▇▇▇▇ receives written notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative third-party claim that ▇▇▇▇▇ believes may result in a Liability Claim by or on behalf of an Indemnified Person, Buyer will notify the Seller Guarantors Holder Representative in writing of such third-party claim and will provide a copy of any notice or other documentation submitted by the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Noticemaking such third-party claim and, if the Indemnifying Persons shall Indemnitors could have any liability hereunder with respect to such third-party claim, (i) provide the rightHolder Representative the opportunity to participate at the Indemnitors’ cost in, but not the obligation to (i) take control of the direct or conduct, any defense and investigation of such Third Party Claimclaim, and (ii) employ keep the Holder Representative reasonably informed about the progress of such third-party claim and engage attorneys will consider in good faith recommendations made by the Holder Representative with respect to the defense of their own choice (such third party claim. The Holder Representative will not be provided such opportunity to the extent that Buyer reasonably determines in good faith that such participation could result in the loss of any attorney-client privilege or right under the work-product doctrine of Buyer or any Indemnified Person in respect of such claim. The Holder Representative’s participation will be subject to ▇▇▇▇▇’s right to control such defense. Buyer will have the approval of Acquirorright in its sole discretion to settle any such third-party claim, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend but if the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with is without the written consent of Acquiror; providedthe Holder Representative, that such consent the settlement will not be required determinative of the amount of Losses relating to such matter or whether such Losses are indemnifiable by the Indemnitors hereunder. If the Holder Representative consents in writing to any such settlement, then neither the Holder Representative nor any Indemnitor will have any power or authority to object to the amount or validity of any claim by or on behalf of any Indemnified Person for indemnity with respect to such settlement. The Holder Representative will be deemed to have been given consent to a settlement if the Holder Representative has not objected within twenty (20) days after the Holder Representative’s receipt of a written request for consent to such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in fulldelivered by ▇▇▇▇▇. Notwithstanding the foregoingany other provision of this Agreement, the Indemnifying Persons shall not have the right to assume the defense any reasonable and documented out-of-pocket costs and expenses of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice investigation or defense, including court costs and reasonable opportunity to cure)attorneys’ fees, (2) incurred or suffered by the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with any third-party claim alleging matters that would constitute the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission failure of a violation representation or a warranty set forth herein to be true and correct or be the basis of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with claim for any other then existing claims under this Article 12matter specified in Section 6.2, would whether or not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party Claim, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosing, defend such Third Party Claim and have the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Indemnified Persons are entitled there was such a failure to be true and correct or basis for a claim, will constitute Losses subject to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right under Section 6.2 (subject to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. Notwithstanding anything herein to the contrary, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not settle, compromise or pay such Third Party Claim for which they seeks indemnification hereunder without the prior written consent of the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary other limitations set forth in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings6.8).
Appears in 1 contract
Sources: Stock Purchase Agreement (Quince Therapeutics, Inc.)
Third Party Claims. Each Notice of Claim given The following additional provisions shall apply with respect to any claims or demands by Acquiror, third parties as to which involves a third party any Parent Indemnified Person seeks indemnification hereunder (a “Third Party Claim”), except that claims or demands by Taxing authorities for taxes shall be resolved as follows:
(a) If, governed by Section 10.3. Unless by written notice delivered by any Parent Indemnified Person to the Equityholders’ Representative within thirty (30) days after a giving the Equityholders’ Representative the applicable Escrow Claim Notice of Claim is delivered to the Seller Representative, (x) the Seller Representative produces a notice of election and (y) such notice of election includes a written acknowledgment from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) that the Indemnifying Persons would be required to indemnify the Acquiror Indemnified Persons for all Damages in connection with such Third Party Claim Notice, the Indemnifying Persons shall have the right, but not the obligation to (i) take control of the defense and investigation respect of such Third Party Claim, (ii) employ and engage attorneys of their own choice (subject to the approval of Acquiror, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, the Indemnifying Persons shall not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend the Acquiror Indemnified Persons against a Third Party Claim, the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt notification by any Parent Indemnified Person to the Equityholders’ Representative of a Parent Indemnified Person’s intent to seek indemnification other than against amounts in the Escrow Fund (a “Non-Escrow Claim Notice”), such Parent Indemnified Person affirmatively elects not to control the defense of such Third Party Claim Notice (such notice, the “Non-Defense Election”), such Parent Indemnified Person will defend, contest, negotiate or settle such Third Party Claim through counsel of its obligation own selection (who shall be reasonably acceptable to indemnify the Acquiror Equityholders’ Representative), at the expense and for the account of the Equity Holders, and the Equityholders’ Representative shall cooperate with and assist such Parent Indemnified Persons against Person in the defense of such claim or demand; provided, however, that (i) the Equityholders’ Representative shall be entitled to participate in such defense, at his own expense, with counsel of his choosing and such Parent Indemnified Person and its counsel shall cooperate with the Equityholders’ Representative in doing so, and (ii) such Parent Indemnified Person will not settle, compromise, or offer to settle or compromise any Damages arising from such Third Party Claim unless (A) the Equityholders’ Representative provides prior written consent, which consent will not be unreasonably withheld or delayed so long as such settlement or compromise releases the Equity Holders completely in connection with such Third Party Claim, then with no statement as to or an admission of fault by or on behalf of the Acquiror Equity Holders and no monetary or nonmonetary relief granted by or imposed upon the Equity Holders or (B) no indemnification under this Article IX is sought by any Parent Indemnified Persons Person in connection with the Third Party Claim covered by the settlement. If the Parent Indemnified Person delivers a Non-Defense Election to the Equityholders’ Representative within thirty (30) days after giving the Equityholders’ Representative the applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party Claim, the Equityholders’ Representative at his own expense shall have the right be entitled to retain separate counsel of their choosingdefend, defend contest, negotiate or settle such Third Party Claim and have if the sole power Equityholders’ Representative provides written notice to direct and control such defense (all at the cost and expense of the Indemnifying Persons if it is ultimately determined that the Acquiror Parent Indemnified Persons are entitled to indemnification hereunder); it being understood that within forty five (45) days after receiving the Acquiror Indemnified Persons’ right to indemnification for a applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party Claim that the Equityholders’ Representative elects to control the defense of such Third Party Claim (such notice, an “Equityholders’ Representative’s Defense Election”), and in the event of such an Equityholders’ Representative’s Defense Election, the Parent Indemnified Persons shall not be adversely affected by assuming cooperate with and assist the Equityholders’ Representative in the defense of such Third Party Claim. Notwithstanding anything herein In the event that the Equityholders’ Representative has assumed the defense of any Third Party Claim, the Equityholders’ Representative will not settle, compromise, or offer to settle or compromise any such Third Party Claim without the prior written consent of Parent (or its designee), which consent will not be unreasonably withheld or delayed so long as such settlement or compromise releases the Parent Indemnified Persons completely in connection with such Third Party Claim, with no statement as to or an admission of fault by or on behalf of the Parent Indemnified Persons and no monetary or nonmonetary relief granted by or imposed upon the Parent Indemnified Persons. If the Parent Indemnified Person delivers the Non-Defense Election to the contraryEquityholders’ Representative within thirty (30) days after giving the Equityholders’ Representative the applicable Escrow Claim Notice or Non-Escrow Claim Notice in respect of such Third Party Claim, whether and the Equityholders’ Representative does not deliver an Equityholders’ Representative’s Defense Election within forty five (45) days after receiving the applicable Escrow Claim Notice or not Non-Escrow Claim Notice in respect of such Third Party Claim, then the Indemnifying Parent Indemnified Persons shall have assumed complete authority to control the defense of such Third Party Claim, the Acquiror Indemnified Persons shall not Claim and to settle, compromise, or offer to settle or compromise or pay such Third Party Claim for which they seeks indemnification hereunder without Claim, and the prior written consent Equityholders’ Representative and the Equity Holders shall have no power or authority to object under Section 9.8 or any other provision of this Article IX to any claim by the Indemnifying Persons, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Parent Indemnified Persons and against the Indemnifying Persons shall use commercially reasonable efforts to avoid production Escrow Fund for amounts payable in respect of confidential information (consistent with Law), and to cause all communications among employees, counsel and others representing any party to a Third Party Claim to be made so as to preserve any applicable attorney-client such settlement or work-product privilegescompromise.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Third Party Claims. Each Notice In the event an Acquiror Indemnified Person becomes aware of Claim given by Acquiror, which involves a third party claim (a “Third Party Claim”)) which such Acquiror Indemnified Person believes in good faith may result in a demand for indemnification, the Acquiror Indemnified Person shall promptly notify the Indemnifying Person of the Third Party Claim in writing. No delay or failure in providing such notice shall affect an Acquiror Indemnified Persons’ rights hereunder, unless (and then only to the extent that) the Indemnifying Person is materially prejudiced thereby. The Indemnifying Person shall be resolved as follows:
(a) Ifentitled to participate in the defense of the Third Party Claim and, within thirty (30) days after a Notice of Claim is delivered if it so chooses, to assume the defense thereof at its own expense with counsel selected by such Indemnifying Person and reasonably acceptable to the Seller RepresentativeAcquiror Indemnified Person, provided, that, the Indemnifying Person gives written notice to the Acquiror Indemnified Person of its election to participate in or to assume the defense of the Third Party Claim within twenty (x20) Business Days after the Seller Representative produces a Indemnifying Person receives the written notice of election and (y) such notice of election includes a written acknowledgment claim from the Seller Representative on behalf of the Seller Guarantors and the Sellers (the “Indemnifying Persons”) Acquiror Indemnified Person; provided, however, that the Indemnifying Persons Person shall not be entitled to assume the defense of any Third Party Claim in which, either directly or indirectly, (i) seeks an injunction or specific performance, or seeks any other form of equitable relief that would reasonably be required expected to indemnify be material to any Acquiror Indemnified Person’s business; (ii) involves criminal allegations against the Acquiror Indemnified Persons Person (or could otherwise be expected to involve or develop into a claim involving a criminal claim or criminal charges against any Acquiror Indemnified Person) and does not involve or otherwise relate to any investigation or inquiry by any Governmental Entity; (iii) would reasonably be expected to impose liability on the part of the Acquiror Indemnified Person for all which the Acquiror Indemnified Person is not entitled to indemnification under this Agreement; (iv) the potential Damages would reasonably be expected to exceed the amount of the Escrow Amount (or any portion thereof that remains in connection with escrow) after taking into account any amounts that may be payable to Acquiror in respect of any unsatisfied or unresolved claims for indemnification made (or expected to be made) by any Indemnifying Party as of such time), as reasonably determined by the Acquiror Indemnified Person in good faith; (v) seeks any license to or otherwise places an Encumbrance on Intellectual Property owned or licensed by any Acquiror Indemnified Person; or (vi) would reasonably be likely to result in a settlement of, or an adverse judgment that in the Acquiror Indemnified Person’s good faith reasonable determination is likely to establish a precedential custom or practice adverse to the continuing business interests or the reputation of any Acquiror Indemnified Person, provided that the Acquiror Indemnified Person assumes the defense of such Third Party Claim Noticeand defends such Third Party Claim in a manner that is substantially similar in all material respects to the manner in which it would have defended such claim if it were not entitled to the benefit of this Section 9 (with the reasonable expenses, and any settlement entered into in accordance with this Section 9.5, constituting Damages hereunder to the Indemnifying Persons shall have extent the right, but not Acquiror Indemnified Person is entitled to recover therefor under the obligation terms hereof). Neither party may 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 other party if (i) take control of such judgment or settlement does not include as an unconditional term thereof the defense and investigation of giving by each claimant or plaintiff a full release from all liability in respect to such Third Party Claim, (ii) employ such judgment or settlement would result in the finding or admission of any violation of any Legal Requirement by a person, (iii) the sole relief provided is anything other than monetary damages or (iv) as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against the an Acquiror Indemnified Person or such judgment or settlement would reasonably be expected to interfere with or materially and engage attorneys adversely affect the business, operations or assets of their own choice (the an Acquiror Indemnified Person. The Acquiror will cooperate, at the expense of the Indemnifying Person, as the Indemnifying Person may reasonably request, in investigating, defending and, subject to the approval of Acquirorterms set forth above, such approval not to be unreasonably withheld, conditioned or delayed) to handle and defend the same, at the Indemnifying Persons’ sole cost and expense, and (iii) compromise or settle settling such Third Party Claim, which compromise or settlement shall be made only with the written consent of Acquiror; provided, that such consent will not be required if such settlement includes an unconditional release of the Acquiror Indemnified Persons and provides solely for payment of monetary damages for which the Acquiror Indemnified Persons will be indemnified in full. Notwithstanding the foregoing, If the Indemnifying Persons shall Person elects not have the right to assume the defense of a Third Party Claim if (1) the Indemnifying Persons fail Claim, is not permitted to actively and diligently conduct the defense of the Third Party Claim (after notice and reasonable opportunity to cure), (2) the Acquiror Indemnified Persons have received advice from counsel that an actual or potential conflict exists between the Acquiror Indemnified Persons and the Indemnifying Persons in connection with assume the defense of such Third Party Claim, (3) such Third Party Claim seeks a finding or admission of a violation of any criminal Law by an Acquiror Indemnified Person, (4) such Third Party Claim seeks an injunction or other equitable remedies in respect of an Acquiror Indemnified Person or its business, (5) such Third Party Claim relates fails to a Material Customer or Material Supplier, or (6) such Third Party Claim is reasonably likely to result in Damages that, taken with any other then existing claims under this Article 12, would not be not be fully indemnified hereunder.
(b) In the event that the Indemnifying Persons defend notify the Acquiror Indemnified Persons against a Third Party Claim, of its election to participate in or assume the Acquiror Indemnified Persons shall cooperate in all reasonable respects, at the Indemnifying Persons’ request, with the Indemnifying Persons and their attorneys in the investigation, trial and defense of such Third Party Claim and any appeal arising therefromas herein provided, including, if appropriate and related to such Third Party Claim, in making any counterclaim against the third party claimant, or any cross complaint against any Person, in each case, at the expense of the Indemnifying Persons. The Acquiror Indemnified Persons may, at their own sole cost and expense, monitor and further participate in (but not control) the investigation, trial and defense of such Third Party Claim and any appeal arising therefrom.
(c) Notwithstanding anything to the contrary herein, if the Indemnifying Persons do not assume such defense and investigation or does not acknowledge in writing within thirty (30) days after receipt of the Third Party Claim Notice its obligation to indemnify the Acquiror Indemnified Persons against any Damages arising from such Third Party ClaimPerson may pay, then the Acquiror Indemnified Persons shall have the right to retain separate counsel of their choosingcompromise, settle or defend such Third Party Claim and have at the sole power to direct and control such defense (all at the cost and expense of the Indemnifying Persons Person if it the Indemnifying Person is ultimately determined that to be liable to the Acquiror Indemnified Persons are entitled Person hereunder. Notwithstanding the foregoing, if the Indemnifying Person is contesting any claims in good faith, or would, but for its inability to indemnification hereunder); it being understood that the Acquiror Indemnified Persons’ right to indemnification for a Third Party Claim shall not be adversely affected by assuming assume the defense of such Third Party Claim. Notwithstanding anything herein claims pursuant to this Section 9.5, be contesting the contraryclaims in good faith, whether or not the Indemnifying Persons shall have assumed the defense of such Third Party Claim, then the Acquiror Indemnified Persons Person shall not settle, compromise pay or pay settle any such Third Party Claim for which they seeks indemnification hereunder claims without the prior written consent of the Indemnifying PersonsPerson, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Acquiror Indemnified Persons and the Indemnifying Persons 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 Claim to be made so as to preserve any applicable attorney-client or work-product privileges.
(e) Notwithstanding anything to the contrary in this Agreement, Section 8.1(d) shall exclusively govern S Corporation Tax Proceedings.
Appears in 1 contract
Sources: Merger Agreement (Nuvasive Inc)