Third Party Indemnification. Promptly after the assertion by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 2 contracts
Sources: Investor Rights and Governance Agreement (Polymet Mining Corp), Investor Rights and Governance Agreement (Polymet Mining Corp)
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice of, and copies of correspondence and documentation relating to, any such Claim promptly after learning of such Claim, and the indemnifying party may at its option undertake the defense thereof by representatives of its own choosing. Notwithstanding the foregoing, to the extent that any party seeks equitable relief against Buyer with respect to any Claim, Buyer shall have the option to undertake the defense thereof by representatives of its own choosing and at its own expense, and the parties shall agree upon an arrangement to protect the rights of Buyer, with respect to the equitable relief claim, and Seller with respect to the remaining claims, provided that if after good faith negotiations the parties are unable to reach such an arrangement, Buyer may elect to either (i) tender the defense of all claims by such third party to Seller, or (ii) assume the defense of any proceeding against any Glencore Indemnitee that results or may result in the incurrence all claims by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party, in which case Seller shall have no further obligation with respect to the Claim or indemnity therefore. The failure Failure to promptly provide such give prompt notice of, or copies of correspondence and documentation relating to, a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Section 7.4, except to the extent that the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice or copies of such correspondence and documentation. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, fails to assume the defense of such Claim, the Company shall have the right, indemnified party against whom such claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any Losses incurred by time prior to settlement, compromise or final determination thereof.
(b) Notwithstanding anything in this Section 7.4 to the Glencore Indemnitee unless: contrary, (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or prior written consent of the indemnifying party, and (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party without the Glencore Indemnitee consentprior written consent of the indemnified party, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 2 contracts
Sources: Asset Purchase Agreement (3com Corp), Asset Purchase Agreement (Utstarcom Inc)
Third Party Indemnification. Promptly after The obligations of Seller to indemnify Buyer Indemnitees under Section 10.2 with respect to Buyer Damages and the obligations of Buyer to indemnify Seller Indemnitees under Section 10.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following additional terms and conditions:
(a) Any Party against whom any third Claim is asserted (the “Indemnified Party”) will give the indemnifying party (the “Indemnifying Party”) written notice of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnifying Party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party’s obligations under this Article X, except to the extent the Indemnifying Party is prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have the right, Indemnified Party will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the Indemnifying Party, subject to give the Defence Notice; or (ii) right of the employment Indemnifying Party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 10.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and Indemnifying Party, without the Glencore Indemnitee consentprior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bc) The Indemnifying Party and the settlement: (I) releases the Glencore Indemnitee and its Affiliates (Indemnified Party shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pretrial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third claim in respect of which indemnity is sought pursuant to this Article X, including by providing the other Party Proceeding with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Summit Midstream Partners, LP), Purchase and Sale Agreement (Summit Midstream Partners, LP)
Third Party Indemnification. Promptly after the assertion by any third party of any proceeding claim, demand or notice thereof (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Loss Claims for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, unless the Claim involves Taxes in which case the provisions of Section 7.05 will apply, such Glencore Indemnitee shall will promptly notify the Company party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the likely amount of the claim by the Third Party. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires), to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee provided that: (a) the Indemnitor acknowledges and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to pay for all Claims arising from or relating to such Third Party Proceeding and (b) the Indemnitor provides to the Indemnitee adequate security (approved by the Purchaser acting reasonably) from time to time in respect of such Claims. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld. Any Glencore Indemnitee shall Indemnified Party will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses Claims incurred by the Glencore Indemnitee unless: Indemnified Party unless (i) the Company Indemnitor failed to give the Defence Notice; , including the acknowledgement and agreement to be set out therein within the prescribed period, (ii) such Indemnified Party has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnified Party and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 2 contracts
Sources: Arrangement Agreement (Lorus Therapeutics Inc), Share Purchase Agreement (Lorus Therapeutics Inc)
Third Party Indemnification. Promptly after The obligations of the Seller to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer Indemnitors to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Claim in the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, with separate counsel (which counsel shall act in an advisory capacity only), in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to reasonably participate in (but such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not control) the defence thereof, but the fees and be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the expense of such indemnified party's counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: indemnifying party if (i) the Company failed indemnifying party requested such separate counsel to give the Defence Notice; participate or (ii) in the employment reasonable opinion of counsel to the indemnified party, a significant conflict of interest exists between the indemnifying party, on the one hand, and the indemnified party, on the other hand, that would make such counsel at separate representation clearly advisable.
(c) Without the expense prior written consent of the Company has been specifically authorized in writing by the Company. The indemnified party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Company) claimant or plaintiff to the Company and its Affiliates (in the case indemnified party of a defence conducted by the Glencore Indemnitee) written release from all liabilities and obligations liability in respect of such Claim. In addition, whether or not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights entry of any person; and judgment with respect thereto, without the prior written consent of the indemnifying party (III) provides as the claimant's which consent shall not be unreasonably withheld or plaintiff`s sole relief monetary damages (that are paid in full by the Companydelayed). Each Party shall cooperate, and cause their respective Affiliates the indemnifying party will not be subject to cooperateany liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in the defense or prosecution all aspects of any Third Party Proceeding investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Accessity Corp), Stock Purchase Agreement (Driversshield Com Corp)
Third Party Indemnification. Promptly after The obligations of an Indemnitor to indemnify Indemnitees under this Article VIII hereof with respect to Damages resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the Indemnitor written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnitor may at its option undertake the defense thereof by representatives of its own choosing. If the third party. The failure to promptly provide such Indemnitor, within thirty (30) days after notice shall not relieve the Company of any obligation such Claim, or such shorter period as is reasonably required, fails to indemnify assume the Glencore Indemnitee, except to the extent defense of such failure prejudices the Company. ThereuponClaim, the Company shall have the right, Indemnitee against whom such claim has been made will (upon written further notice (the "Defence Notice"to Indemnitor) to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the Indemnitor, subject to give the Defence Notice; or (ii) right of the employment Indemnitor to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.5 to the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and contrary, notwithstanding, an Indemnitor shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party without the Glencore Indemnitee consentprior written consent of the Indemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Selas Corp of America)
Third Party Indemnification. Promptly after The obligations of the assertion by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Seller to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 7.2 with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted shall give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article 7, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made shall have the right, (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination of such Claim;
(b) Anything in this Section 7.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed . The indemnified party shall not enter into any settlement or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights compromise of any person; and (III) provides as action, suit or proceeding or consent to the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution entry of any Third Party Proceeding judgment; and
(c) The indemnifying party and the indemnified party shall furnish cooperate fully in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or cause discharge of any claim in respect of which indemnity is sought under this Article 7, including by providing the other party with reasonable access to be furnished such records, information employees and testimony, officers (including as witnesses) and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. Promptly after the assertion by any third party of any proceeding Third Party Claim (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Claim or Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, such Glencore Indemnitee shall will promptly notify the Company party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the likely amount of the Third Party Claim. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires) to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee provided that: (a) the Indemnitor acknowledges and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to pay for all Losses arising from or relating to such Third Party Proceeding and (b) the Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such Losses. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld or delayed. Any Glencore Indemnitee shall will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses incurred by the Glencore Indemnitee unless: unless (i) the Company Indemnitor failed to give the Defence Notice; , including the acknowledgement and agreement to be set out therein within the prescribed period, (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Sources: Transaction Agreement (Bce Inc)
Third Party Indemnification. Promptly after Except with respect to Tax matters governed by Section 4.7, the obligations of the Seller to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Third-Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Third-Party Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Third-Party Claim promptly notify the Company after learning of such Third Third-Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Third-Party Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Third-Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third-Party Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Third-Party Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Third-Party Claim in the manner set forth above and in a good faith and diligent manner, the indemnifying party shall have the exclusive right to contest, defend and litigate such Third-Party Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Third-Party Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, with separate counsel (which counsel shall act in an advisory capacity only), in any Third such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to such indemnified party of the indemnifying party's election to assume the defense of such Third-Party Proceeding Claim, the indemnifying party will not be liable to reasonably participate in (but not control) the defence thereof, but the fees and such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the expense of such -------- ------- indemnified party's counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: indemnifying party if (i) the Company failed indemnifying party requested such separate counsel to give the Defence Notice; participate or (ii) in the employment reasonable opinion of counsel to the indemnified party, a significant conflict of interest exists between the indemnifying party, on the one hand, and the indemnified party, on the other hand, that would make such counsel at separate representation clearly advisable.
(c) Without the expense prior written consent of the Company has been specifically authorized in writing by the Company. The indemnified party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Third-Party Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Companyclaimant or plaintiff to the indemnified party of a written release from all liability in respect of such Third-Party Claim. In addition, whether or not the indemnifying party shall have assumed the defense of the Third-Party Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Third-Party Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed), and the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) or Upon execution of this Agreement and delivery of the Company and its Affiliates (in Disclosure Schedule, the case Seller shall be deemed to have satisfied the notice requirement of a defence conducted by the Glencore IndemniteeSection 7.4(a) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part all matters set forth in Section 2.8 of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company Disclosure Schedule.
(e) The indemnifying party and its Affiliates (the indemnified party shall cooperate fully in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights all aspects of any person; and (III) provides as the claimant's investigation, defense, pre-trial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ralcorp Holdings Inc /Mo)
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingCLAIM"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by representatives of its own choosing; provided, that the indemnifying party shall permit the indemnified party to participate in such settlement or defense through counsel chosen by the third indemnified party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but provided that the fees and expenses of such counsel shall not be included as part borne by the indemnifying party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Article VII, except to the extent that the indemnifying party is actually prejudiced by such failure to give prompt notice. If the indemnifying party, within thirty (30) days after notice of any Losses incurred by such Claim, fails to assume the Glencore Indemnitee unless: defense of such Claim, the indemnified party against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, in the exercise of its reasonable discretion, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 7.4 to the contrary notwithstanding, (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed or conditioned; or and (bii) the settlement: (I) releases indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for other than monetary damages to be borne by the Companyindemnifying party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) No indemnified party will, in any event, be entitled to any punitive, incidental, indirect, special or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) consequential damages resulting from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights arising out of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithclaim under this Article VII.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of an Indemnitor to indemnify Indemnitees under Section 9.2 or Section 9.3, as applicable, of this Article IX hereof with respect to Damages resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following additional terms and conditions:
(a) Any Indemnitee against whom any Claim is asserted will give the Indemnitor advance written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the rightIndemnitor may, upon written notice (the "Defence Notice") to the Glencore Indemnitee, at its sole option elect to undertake and pay for the defense thereof by representatives of its own choosing but that is reasonably acceptable to the Indemnitee. The Indemnitor shall not, following and so long as it diligently conducts such defense, be liable to the Indemnitee within 45 days after receipt by for any fees of other counsel or any other expenses with respect to the Company defense of notice such Claim, however the Indemnitee may retain legal counsel of its own choosing to participate in the Third Party Proceeding to conduct, defense of such Claim at its own expense. If the Indemnitor, within thirty (30) days after written notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall against whom such Claim has been made will (upon further written notice to Indemnitor) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense or reasonable compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnitor, but and the fees costs and expenses of such counsel shall not be included as part defense (including CONFIDENTIAL reasonable attorneys' fees) of Claims and Damages (including the cost of any Losses incurred such reasonable compromise or settlement of any such Claim) for which indemnification is required under Article IX shall be reimbursed to the Indemnitee by the Glencore Indemnitor. Notice of any third-party Claim to the Indemnitor by the Indemnitee unlessmust specifically include to the extent available to Indemnitee: (i) the Company failed to give the Defence Notice; or factual basis for such Claim, and (ii) the employment of such counsel at the expense amount of the Company has been specifically Claim. For the purposes of investigation and/or defense of the Claim, the Indemnitee agrees to make available to the Indemnitor and/or its authorized in writing representative(s) the information relied upon by the CompanyIndemnitee to substantiate the Claim and/or defend the Claim. The Indemnitee further agrees to give the Indemnitor reasonable access to the books, records, and assets of the Indemnitee that relate to the act or omission or occurrence upon which the third-party conducting claim is based and the defence right of the Indemnitor, upon reasonable advance notice, to interview any Third Party Proceeding shall keep relevant personnel of the other party reasonably apprised of all significant developments and Indemnitee concerning the Claim during normal business hours.
(b) Anything in this Section 9.5 to the contrary notwithstanding: (i) an Indemnitor shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with which does not include as an unconditional term thereof the delivery by the third-party claimant or plaintiff to the Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding and (aii) neither the Company and Indemnitor nor the Glencore Indemnitee consentshall enter into any compromise or settlement of any action, suit or proceeding without the prior written consent of the other, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Sellers to indemnify the Buyer Indemnitees under Section 7.1 with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 7.2 with respect to Seller Damages, in either case resulting from the assertion of liability by any third parties (each, as the case may be, a “Claim”), will be subject to the following terms and conditions:
(a) A party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to claiming indemnification pursuant to under this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee an “Indemnified Party”) shall promptly with reasonable promptness (i) notify the Company party from whom indemnification is sought (the “Indemnifying Party”) of such Third any Claims for which indemnification is sought and (ii) transmit to the Indemnifying Party Proceeding. Such a written notice shall also specify with (“Claim Notice”) describing in reasonable detail the factual basis for nature of the Third Party Proceeding Claim, a copy of all papers served with respect to such Claim (if any), and the amount claimed by basis of the third partyIndemnified Party’s request for indemnification under this Agreement. The failure Failure to promptly provide such notice shall not relieve affect the Company right of any obligation an Indemnified Party to indemnify the Glencore Indemniteeindemnification, except to the extent the Indemnifying Party is materially prejudiced by such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice failure.
(the "Defence Notice"b) to the Glencore Indemnitee within 45 Within 30 days after receipt by of any Claim Notice (the Company of notice of “Election Period”), the Third Indemnifying Party Proceeding shall notify the Indemnified Party (i) whether the Indemnifying Party disputes its potential liability to conductthe Indemnified Party under this Article VII with respect to such Claim and (ii) whether the Indemnifying Party desires, at its own sole cost and expense, to defend the defence Indemnified Party against such Claim.
(c) If the Indemnifying Party within the Election Period elects to assume the defense of the Third Claim, then the Indemnifying Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate defend, at its sole cost and expense (if the Indemnified Party is entitled to indemnification hereunder), such Claim by all appropriate Proceedings, which Proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party in accordance with this Section 7.3(c). The Indemnifying Party shall have full control of such defense and Proceedings, including any compromise or settlement thereof. The Indemnified Party is hereby authorized, at the sole cost and expense of the Indemnifying Party (but only if the Indemnified Party is entitled to indemnification hereunder), to file, during the Election Period, any motion, answer or other pleadings that the Indemnified Party shall reasonably deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not prejudicial to the Indemnifying Party (it being understood and agreed that if an Indemnified Party takes any such action that is materially prejudicial and causes a final adjudication that is adverse to the Indemnifying Party, the Indemnifying Party shall be relieved of its obligations hereunder with respect to such Claim to the extent the Indemnifying Party was so prejudiced and harmed). If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Claim that the Indemnifying Party Proceeding elects to reasonably contest, including, without limitation, the making of any related counterclaim against the Person asserting the Claim or any cross-complaint against any Person. Except as otherwise provided herein, the Indemnified Party may participate in (in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 7.3 and shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnifying Party may not agree to any compromise or settlement which would require any action other than the payment of money that shall be fully paid by the Indemnifying Party without the express written consent of the Indemnified Party.
(d) If the defence thereofIndemnifying Party fails within the Election Period to elect to defend the Indemnified Party pursuant to Section 7.3(c), or if the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 7.3(c) but fails diligently and promptly to prosecute or settle the fees Claim as herein provided, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder), the Claim by all appropriate Proceedings, which Proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and proceedings. Notwithstanding the foregoing, if the Indemnifying Party has notified the Indemnified Party that it does not agree to any potential liability to the Indemnified Party under this Section 7.3(c), and if such dispute is resolved in favor of the Indemnifying Party, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.3 or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all costs and expenses of such counsel shall litigation. The Indemnifying Party may participate in, but not be included as part of control, any Losses incurred defense or settlement controlled by the Glencore Indemnitee unless: (i) Indemnified Party pursuant to this Section 7.3, and the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments bear its own costs and shall not enter into any settlement, compromise or consent to judgment expenses with respect to such Third participation.
(e) In the event any Indemnified Party Proceeding unless: has a claim against any Indemnifying Party hereunder that does not involve a Claim, the Indemnified Party shall transmit to the Indemnifying Party a written notice (athe “Indemnity Notice”) describing in reasonable detail the Company and nature of the Glencore Indemnitee consentclaim, an estimate of the amount of damages attributable to such claim to the extent feasible (which consent estimate shall not be unreasonably withheldconclusive of the final amount of such claim) and the basis of the Indemnified Party’s request for indemnification under this Agreement. If the Indemnifying Party does not notify the Indemnified Party within 30 days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, delayed or conditioned; or (b) the settlement: (I) releases claim specified by the Glencore Indemnitee and its Affiliates (Indemnified Party in the case Indemnity Notice shall be deemed a liability of a defence conducted by the Company) or Indemnifying Party hereunder. If the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to Indemnifying Party has timely disputed such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appealsclaim, as may provided above, such dispute shall be reasonably requested resolved in connection therewithaccordance with this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hemiwedge Industries, Inc)
Third Party Indemnification. Promptly after the assertion If any legal proceedings are instituted or any claim is asserted by any third party in respect of any proceeding against any Glencore Indemnitee that results which the Seller Indemnified Parties on the one hand, or the Buyer Indemnified Parties on the other hand, may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant indemnity hereunder, the party asserting such right to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee indemnity shall promptly notify give the Company of such Third Party Proceedingparty from whom indemnity is sought written notice thereof. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide A delay in giving such notice shall not only relieve the Company recipient of any the obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Companyrecipient suffers actual prejudice because of the delay. Thereupon, the Company The party from whom indemnity is sought shall have the right, upon written notice (but not the "Defence Notice") obligation, at its option and expense with counsel of its choice, to control the Glencore Indemnitee within 45 days after receipt by defense thereof and may compromise or settle the Company of notice same without the consent of the Third Party Proceeding indemnified party (which consent will not be unreasonably withheld or delayed) provided the settlement involves only money damages; provided that (i) the party from whom indemnity is sought irrevocably acknowledges in writing full responsibility for and agrees to conductfully indemnify the party asserting such right to indemnity and (ii) the party asserting such right to indemnity shall have the right to participate, but not control, such defense, at its own expense, with counsel of its choice in connection with the defence defense of such a proceeding or claim. If the party from whom indemnity is sought does not assume control of the Third Party Proceeding in its own name ordefense of such a proceeding or claim, if necessarythe party asserting such right to indemnity shall not, in without the name prior written consent of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in party from whom indemnity is sought (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed pay, compromise or conditioned; settle any such proceeding or (b) claim. If the settlement: (I) releases party from whom indemnity is sought does assume control of the Glencore Indemnitee and its Affiliates (in defense of such a proceeding or claim, it will not, without the case prior written consent of a defence conducted the party asserting such right to indemnity, settle the proceeding or claim or consent to entry of any judgment relating thereto which does not include as an unconditional term thereof the giving by the Company) or claimant to the Company and its Affiliates (in the case of party asserting such right to indemnity a defence conducted by the Glencore Indemnitee) release from all liabilities and obligations Liability in respect of the proceeding or claim. The parties hereto agree to cooperate fully with respect to such Third Party Proceeding; (II) contains no admission on each other in connection with the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) defense, negotiation or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights settlement of any person; and (III) provides as the claimant's such proceeding or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithclaim.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of either party to indemnify the other under Section 8.2 or 8.4 hereof with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) A Buyer Indemnitee or Seller Indemnitee, as the case may be (the "Indemnified Party"), against whom any Claim is asserted will give Sellers or Buyer, as the case may be (the "Indemnifying Party"), written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnifying Party may at its option undertake the defense thereof by the third partyrepresentatives of their own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party's obligations under this Section 8.3, except to the extent the Indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have the right, Indemnified Party against whom such Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the Indemnifying Party subject to give the Defence Notice; or (ii) right of the employment Indemnifying Party to assume the defense of such counsel Claim at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 8.3 to the contrary notwithstanding, the neither party shall enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the other party of a written release from all liability in respect of such action, suit or proceeding and (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and other party without the Glencore Indemnitee consentprior written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying Party to indemnify any indemnified Person under this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement Persons (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any Party against whom any Claim is asserted will give the indemnifying Party written notice of any such Glencore Indemnitee Claim (which notice shall include reasonably specified details regarding such Claim, an estimate of the Buyer Damages or Seller Damages, as applicable, and the specific basis under this Agreement for such Claim) promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying Party may at its option undertake the defense thereof by the third party. The failure to promptly provide such notice counsel of its own choosing (which shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except be reasonably acceptable to the extent such failure prejudices the Company. ThereuponParty being indemnified); provided, however, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee indemnified Person shall have the right to employ separate counsel participate in any Third matter through counsel of its own choosing at its own expense; provided further, however, that the indemnifying Party Proceeding to reasonably participate in (but not control) the defence thereof, but shall pay the fees and expenses of separate counsel for the indemnified Person if the indemnifying Party has agreed to pay such fees and expenses or the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified Person and the indemnifying Party, and such indemnified Person shall have been advised by counsel shall not that the representation of both parties would be included as part of any Losses incurred by inappropriate due to actual or potential differing interests between them (in which case, if such indemnified Person notifies the Glencore Indemnitee unless: (i) the Company failed indemnifying Party in writing that it elects to give the Defence Notice; or (ii) the employment of such employ separate counsel at the expense of the Company has been specifically authorized indemnifying Party, the indemnifying Party shall not have the right to assume the defense of such Claim on behalf of such indemnified Person; it being understood, however, that the indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified Person, which firm shall be designated in writing by such indemnified Person). Failure to give prompt notice of a Claim hereunder shall not affect the Companyindemnifying Party's obligations under this Article VII, except to the extent that the indemnifying Party is materially prejudiced by such failure to give prompt notice. The party conducting If the defence indemnifying Party elects to assume the defense of the Claim, the indemnified Person shall provide the indemnifying Party with reasonable access to its records and personnel relating to such Claim and shall otherwise cooperate with the indemnifying Party in the defense or settlement of the Claim. If the indemnifying Party, within thirty (30) days after notice of any Third Party Proceeding shall keep such Claim, fails to assume the other party reasonably apprised defense of all significant developments and shall not enter into any settlementsuch Claim, or thereafter fails to diligently defend such Claim, the indemnified Person against whom such Claim has been made will (upon further written notice to the indemnifying Party) have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk, and at the expense, of the indemnifying Party.
(b) Anything in this Section 7.5 to the contrary notwithstanding, the indemnified Person shall not settle, compromise or pay a claim for which it is indemnified without the prior written consent to judgment with respect to such Third Party Proceeding unless: (a) of the Company and the Glencore Indemnitee consentindemnifying Party, which consent shall not be unreasonably withheld, delayed and the indemnifying Party shall not enter into any settlement or conditioned; compromise of any action, suit or (b) proceeding or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for other than monetary damages to be borne by the Company) or indemnifying Party, without the Company and its Affiliates (in prior written consent of the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party indemnified Person, which consent shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to not be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithunreasonably withheld.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Third Party Indemnification. Promptly after The obligations of the assertion by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Sellers to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 7.2 hereof and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third party (each, as the case may be, a “Claim”), shall be further subject to the following terms and conditions:
(i) Any party against whom any Claim is asserted shall give the party (or the parties) required to provide indemnity hereunder written notice of such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such Claim has been made shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part obligated, to undertake the defense, compromise or settlement of any Losses incurred by such Claim on behalf and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed to give expense, of the Defence Notice; or indemnifying party.
(ii) Anything in this Section 7.4 to the employment of such counsel at contrary notwithstanding, the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (A) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding, or (aB) for other than monetary damages without the Company and prior written consent of the Glencore Indemnitee consentIndemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Third Party Indemnification. Promptly after The obligations of the Seller and the Seller Shareholders to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of Cendant, the Buyer and the Sub to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Claim in the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, with separate counsel (which counsel shall act in an advisory capacity only), in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to reasonably participate in (but such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not control) the defence thereof, but the fees and be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; PROVIDED, HOWEVER, that the expense of such indemnified party's counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: indemnifying party if (i) the Company failed indemnifying party requested such separate counsel to give the Defence Notice; participate or (ii) in the employment reasonable opinion of counsel to the indemnified party, a significant conflict of interest exists between the indemnifying party, on the one hand, and the indemnified party, on the other hand, that would make such counsel at separate representation clearly advisable.
(c) Without the expense prior written consent of the Company has been specifically authorized in writing by the Company. The indemnified party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Company) claimant or plaintiff to the Company and its Affiliates (in the case indemnified party of a defence conducted by the Glencore Indemnitee) written release from all liabilities and obligations liability in respect of such Claim. In addition, whether or not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights entry of any person; and judgment with respect thereto, without the prior written consent of the indemnifying party (III) provides as the claimant's which consent shall not be unreasonably withheld or plaintiff`s sole relief monetary damages (that are paid in full by the Companydelayed). Each Party shall cooperate, and cause their respective Affiliates the indemnifying party will not be subject to cooperateany liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in the defense or prosecution all aspects of any Third Party Proceeding investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. Promptly after (a) If the assertion by Injured Party settles or compromises any third third-party of any proceeding against any Glencore Indemnitee that results claims, or may result in the incurrence by such Glencore Indemnitee of any Loss for initiates action which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis is for the Third purpose in whole or in part of causing a claim to be asserted, prior to giving a Notice of Claim to the Indemnifying Party, the Indemnifying Party Proceeding shall be released from its indemnity obligation.
(b) With respect to any action or any claim set forth in a Notice of Claim relating to a third-party claim, the Indemnifying Party may defend, in good faith and at its expense, any such claim or demand, and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore IndemniteeInjured Party, except to the extent such failure prejudices the Company. Thereuponat its expense, the Company shall have the right, upon written notice (but not the "Defence Notice") obligation, to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) at its expense in the defence thereof, but the fees and expenses of such counsel shall not be included as part defense of any Losses incurred by the Glencore Indemnitee unless: such third-party claim so long as (i) the Company failed Indemnifying Party shall have acknowledged in writing to give the Defence Notice; or relevant Injured Party its obligation to indemnify such Injured Party as provided hereunder, (ii) the employment third-party claim involves primarily money damages and (iii) the Indemnifying Party conducts the defense of the third-party claim actively and diligently. So long as the Indemnifying Party is defending any such third-party claim, the Injured Party shall not settle or compromise such third-party claim without the consent of the Indemnifying Party. If such claim is settled by the Injured Party without the Indemnifying Party’s consent, the Injured Party shall be deemed to have waived all rights hereunder for money damages arising out of such counsel at claim. The Indemnifying Party may settle or compromise such third-party claim without the expense consent of the Company has been specifically authorized Injured Party, if the settlement or compromise involves only the payment of monetary damages and included in writing by such settlement or compromise as an unconditional term thereof is the Companydelivery to Injured Party of a written release from all liability in respect of such third-party claim. The Otherwise, the Indemnifying Party may not settle or compromise such third-party conducting claim without the defence consent of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentInjured Party, which consent shall not be unreasonably withheld, delayed . The Injured Party shall make available to the Indemnifying Party or conditioned; or (b) its representatives all records and other materials reasonably required for use in contesting any third-party claim. The Injured Party shall cooperate fully with the settlement: (I) releases the Glencore Indemnitee and its Affiliates (Indemnifying Party in the case defense of all such claims.
(c) If the Indemnifying Party fails to assume the defense of any such third-party claims, within thirty (30) days after receipt of a defence conducted by Notice of Claim (or such shorter period of time that the Company) Injured Party may be required to respond to any suit or governmental action), the Company Injured Party shall have the right to undertake the defense, settle or compromise any such third-party claim at the risk and its Affiliates (expense of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof. The failure of the Indemnifying Party to respond in writing to the case aforesaid notice of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations Injured Party with respect to such Third third-party claim within thirty (30) days after receipt thereof shall be deemed an election not to defend same. The Indemnifying Party Proceeding; (II) contains no admission on will not, however, be responsible for any Damages if and to the part of Glencore Indemnitee and its Affiliates (extent that they arise from action taken or omitted to be taken by the Injured Party in the case bad faith, fraudulently, negligently or as a result of a defence conducted breach of this Agreement by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithInjured Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tekelec)
Third Party Indemnification. Promptly after In the case of the assertion of liability by third parties (a “Claim“) for which Buyer or Seller intends to seek indemnification hereunder:
(a) Any party against whom any third Claim is asserted will give the party required to provide indemnity hereunder written notice of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Section 7.4, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt notice. Notwithstanding the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessaryforegoing, in the name event that a Claim is made against both the indemnifying party and the indemnified party, and the indemnified party determines in good faith that there exists a conflict of interest such that joint representation would not be appropriate, the Glencore Indemnitee. Any Glencore Indemnitee indemnified party (upon further notice to the indemnifying party) shall have the right to employ separate counsel in undertake the defense and, subject to Section 7.4(b), any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim. In addition, if the indemnifying party, within thirty (30) days after notice of any Losses incurred by such Claim, fails to assume the Glencore Indemnitee unless: defense of such Claim, the indemnified party against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 7.4 to the contrary notwithstanding, (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, delayed or conditioned; or and (bii) the settlement: (I) releases indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for other than monetary damages to be borne by the Company) or indemnifying party without the Company and its Affiliates (in prior written consent of the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party indemnified party, which consent shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to not be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithunreasonably withheld.
Appears in 1 contract
Third Party Indemnification. Promptly after The respective obligations and liabilities of the Seller and Buyer (the “indemnifying party”) to the Buyer Indemnified Parties and the Seller Indemnified Parties, as appropriate (the “party to be indemnified”), under Sections 6.1 and 6.2 with respect to Claims resulting from the assertion of liability by any third party parties shall be subject to the following terms and conditions:
(a) As soon as practicable after receipt of notice of commencement of any proceeding against any Glencore Indemnitee that results action evidenced by service of process or may result in other legal pleading, the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would party to be entitled to indemnification pursuant to this Agreement (indemnified shall give the indemnifying party written notice thereof together with a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company copy of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third partyclaim, process or other legal pleading. The failure to promptly provide such deliver written notice shall not relieve to the Company indemnifying party within a reasonable time of the commencement of any obligation such action, if materially prejudicial to indemnify the Glencore Indemniteeits ability to defend such action, except shall relieve such indemnifying party of any liability to the extent such failure prejudices the Companyparty to be indemnified. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee The indemnifying party shall have the right to employ separate counsel in any Third Party Proceeding undertake the defense thereof by representatives of its own choosing and at its own expense; provided that the party to reasonably be indemnified may participate in (but not control) the defence thereofdefense with counsel of its own choice, but the fees and expenses of such which counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: party to be indemnified unless (i) the Company failed indemnifying party has agreed to give the Defence Notice; or pay such fees and expenses, (ii) the employment indemnifying party has failed to assume the defense of such action or (iii) the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at the expense of the Company has been specifically authorized indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the Company. The party conducting to be indemnified.
(b) In the defence event that the indemnifying party, by the 30th day after receipt of notice of any Third Party Proceeding shall keep such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party reasonably apprised to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of all significant developments such claim on behalf of and shall not enter into for the account and risk of the indemnifying party and at the indemnifying party’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle any claim without the prior consent of the party to judgment with respect to be indemnified; provided, however, that such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bd) The party to be indemnified and the settlement: (I) releases indemnifying party will each cooperate with all reasonable requests of the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations other with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (any claim as described in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewiththis Section 6.4.
Appears in 1 contract
Sources: Purchase Agreement (Wound Management Technologies, Inc.)
Third Party Indemnification. Promptly after (a) In the assertion event that any Claim ----------- -------------------------- for which the Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against an Indemnified Party by any a third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party ProceedingClaim"), such Glencore Indemnitee the Indemnified Party shall promptly deliver a Claim Notice to the Indemnifying Party. The Indemnifying Party shall have twenty (20) days from the date of delivery of the Claim Notice to notify the Company of Indemnified Party whether the Indemnifying Party disputes liability to the Indemnified Party hereunder with respect to the Third Party Claim, and, if so, the basis for such a dispute. In the event that the Indemnifying Party timely notifies the Indemnified Party that the Indemnifying Party does not dispute the Indemnifying Party's obligation to indemnify with respect to the Third Party Claim, the Indemnifying Party shall defend the Indemnified Party against such Third Party Proceeding. Such notice shall also specify with reasonable detail Claim by appropriate proceedings, provided that, unless the factual basis for the Third Indemnified Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereuponotherwise agrees in -------- writing, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Indemnifying Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in may not settle any Third Party Proceeding Claim (in whole or in part) if such settlement does not include a complete and unconditional release of the Indemnified Party. If the Indemnified Party desires to reasonably participate in (in, but not control) , any such defense or settlement the defence thereofIndemnified Party may do so at its sole cost and expense. If the Indemnifying Party elects not to assume control of the defense on behalf of the Indemnified Party against a Third Party Claim, but whether by failure of such party to give the fees Indemnified Party timely notice as provided herein or otherwise, then the Indemnified Party, without waiving any rights against such party, may settle or defend against such Third Party Claim and the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and, on an ongoing basis, all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest from the date such counsel costs and expenses were incurred, provided that any settlement shall not be included as part of any Losses incurred by require the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentIndemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (Camden Partners Strategic Ii LLC)
Third Party Indemnification. Promptly after the assertion by any third party of any proceeding Third Party Claim (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Claim or Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, such Glencore Indemnitee shall will promptly notify the Company party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the likely amount of the Third Party Claim. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon▇▇▇▇▇▇▇▇▇, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires) to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee provided that the Indemnitor acknowledges and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to pay for all Losses arising from or relating to such Third Party Proceeding. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld. Any Glencore Indemnitee shall will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company Indemnitor failed to give the Defence Notice, including the acknowledgement to be set out therein within the prescribed period; (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules; or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Share Purchase Agreement
Third Party Indemnification. Promptly after (a) In the assertion event that any Claim --------------------------------------- for which the Indemnifying Party would be liable to an Indemnified Party hereunder is asserted against an Indemnified Party by any a third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party ProceedingClaim"), such Glencore Indemnitee the Indemnified Party shall promptly deliver a Claim Notice to the Indemnifying Party. The Indemnifying Party shall have twenty (20) days from the date of delivery of the Claim Notice to notify the Company of Indemnified Party whether the Indemnifying Party disputes liability to the Indemnified Party hereunder with respect to the Third Party Claim, and, if so, the basis for such a dispute. In the event that the Indemnifying Party timely notifies the Indemnified Party that the Indemnifying Party does not dispute the Indemnifying Party's obligation to indemnify with respect to the Third Party Claim, the Indemnifying Party shall defend the Indemnified Party against such Third Party Proceeding. Such notice shall also specify with reasonable detail Claim by appropriate proceedings, provided that, unless the factual basis for the Third Indemnified Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereuponotherwise agrees in -------- writing, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Indemnifying Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in may not settle any Third Party Proceeding Claim (in whole or in part) if such settlement does not include a complete and unconditional release of the Indemnified Party. If the Indemnified Party desires to reasonably participate in (in, but not control) , any such defense or settlement the defence thereofIndemnified Party may do so at its sole cost and expense. If the Indemnifying Party elects not to assume control of the defense on behalf of the Indemnified Party against a Third Party Claim, but whether by failure of such party to give the fees Indemnified Party timely notice as provided herein or otherwise, then the Indemnified Party, without waiving any rights against such party, may settle or defend against such Third Party Claim and the Indemnified Party shall be entitled to recover from the Indemnifying Party the amount of any settlement or judgment and, on an ongoing basis, all indemnifiable costs and expenses of the Indemnified Party with respect thereto, including interest from the date such counsel costs and expenses were incurred, provided that any settlement shall not be included as part of any Losses incurred by require the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentIndemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Camden Partners Strategic Ii LLC)
Third Party Indemnification. The obligations of the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnified Parties under Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “CLAIM”), shall be subject to the following terms and conditions:
11.4.1 Promptly after the assertion receipt by any an Indemnified Party of notice by a third party of any proceeding against any Glencore Indemnitee that results complaint or may result in the incurrence by such Glencore Indemnitee commencement of any Loss for action or proceeding with respect to which such Glencore Indemnitee would Indemnified Party may be entitled to indemnification pursuant receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement (a "Third Party Proceeding")with respect to such claim only if, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except only to the extent that, such failure prejudices to notify the CompanyIndemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. ThereuponIn addition, the Company Indemnified Party shall have the right, upon written notice (the "Defence Notice") provide to the Glencore Indemnitee Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Indemnified Party. If the Indemnifying Party within 45 thirty (30) days after receipt by the Company of notice of any such Claim fails to assume the Third Party Proceeding to conduct, at its own expensedefense of such Claim, the defence of Indemnified Parties will (upon further notice to the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not be included as part of pay or settle any Losses incurred by such claim.
11.4.2 Anything in this Section 11.4 to the Glencore Indemnitee unless: (i) contrary notwithstanding, the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term hereof the Company and delivery by the Glencore Indemnitee consentclaimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding; or (b) for other than monetary damages without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Seller to indemnify the Buyer Indemnitees under Section 9.2 hereof with respect to Buyer Damages resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed by indemnifying party may at its option undertake the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductdefense thereof, at its own expense, the defence by representatives of the Third Party Proceeding in its own name orchoosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Section 9.3, if necessaryexcept to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the indemnifying party, in within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the name defense of such Claim, the Glencore Indemnitee. Any Glencore Buyer Indemnitee shall against whom such claim has been made will (upon further notice to the indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof. 72 81
(b) Anything in this Section 9.3 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Buyer Indemnitee of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party without the Glencore Indemnitee consentprior written consent of the Buyer Indemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of --------------------------- the Parent and the Sellers to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Parent/Seller Indemnitees under Section 7.3 hereof with respect to Parent/Seller Damages and to indemnify the ▇▇▇▇▇▇▇ Indemnitees with respect to ▇▇▇▇▇▇▇ Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Promptly after acquiring knowledge of any claim in respect of which a party (the "Indemnified Party") may seek indemnification from the other party (the "Indemnifying Party") hereunder, the Indemnified Party shall give written notice thereof to the Indemnifying Party describing such Glencore Indemnitee shall promptly notify claim and demanding indemnification hereunder. Notwithstanding the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The foregoing, failure to promptly provide such the aforementioned notice shall will not relieve the Company Indemnifying Party of any obligation liability that it may have to indemnify the Glencore IndemniteeIndemnified Party under this Agreement, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: that (i) such failure to provide notice causes the Company failed amounts paid by the Indemnifying Party to give the Defence Noticebe greater than they would have been had such notice been given on a reasonably timely basis; or (ii) such notice is not delivered to the employment Indemnifying Party prior to the expiration of such counsel at the expense any applicable survival period, if any, under Section 7.1. The Indemnifying Party will be entitled to assume control of the Company has been specifically authorized defense of any claim, and to settle or compromise such claim in writing its discretion, subject to the consent of the Indemnified Party which consent will not be unreasonably withheld or delayed. After written notice by the Company. The party conducting Indemnifying Party to the defence Indemnified Party of its election to assume control of the defense of any Third such action, the Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect liable to such Third Indemnified Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (hereunder for any legal expenses subsequently incurred by such Indemnified Party in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in connection with the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested thereof. Notwithstanding anything in connection therewith.this Section
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Seller (or, if Seller shall be wound-up and dissolved or shall otherwise cease to exist or shall otherwise fail to satisfy its obligations hereunder, the obligations of the Seller Shareholders) to indemnify the Buyer Indemnities under Section 9.2 hereof on the one hand, or PRT and Buyer to Indemnify the Seller Indemnities or the Seller Shareholders under Section 9.3 hereof with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed by indemnifying party may at its option undertake the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductdefense thereof, at its own expense, the defence by representatives of the Third Party Proceeding in its own name orchoosing. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party's obligations under this Section 9.3, if necessaryexcept to the extent the indemnifying party is materially prejudiced by such failure to give prompt notice. If the indemnifying party, in within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the name defense of such Claim, the Glencore Buyer Indemnitee or Seller Indemnitee. Any Glencore Indemnitee shall , as the case may be, against whom such claim has been made will (upon further notice to the indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 9.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Buyer Indemnitee or Seller Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party without the Glencore prior written consent of the Buyer Indemnitee consentor Seller Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of the Parent, AIFI, AMI and ADI to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Claim in the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, at its own expense with separate counsel (which counsel shall act in an advisory capacity only), in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to reasonably participate in (but such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not control) the defence thereof, but the fees and be liable to such indemnified party for any expenses of such the indemnified party's counsel shall not be included as part of any Losses that are subsequently incurred by in connection with the Glencore Indemnitee unless: (i) the Company failed to give the Defence Noticedefense thereof; or (ii) the employment of such counsel at provided, however, that the expense of the Company has been specifically authorized in writing such indemnified party's counsel shall be paid by the Company. The indemnifying party conducting if the defence indemnifying party requested such separate counsel to participate.
(c) Without the prior written consent of any Third Party Proceeding shall keep the other indemnified party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Company) claimant or plaintiff to the Company and its Affiliates (in the case indemnified party of a defence conducted by the Glencore Indemnitee) written release from all liabilities and obligations liability in respect of such Claim. In addition, whether or not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights entry of any person; and judgment with respect thereto, without the prior written consent of the indemnifying party (III) provides as the claimant's which consent shall not be unreasonably withheld or plaintiff`s sole relief monetary damages (that are paid in full by the Companydelayed). Each Party shall cooperate, and cause their respective Affiliates the indemnifying party will not be subject to cooperateany liability for any such admission, in settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithindemnifying party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amerihost Properties Inc)
Third Party Indemnification. Promptly after The obligations of the assertion by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Seller to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 9.2 with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 9.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), shall be subject to the following terms and conditions:
(a) Any Party against whom any Claim is asserted shall give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article IX, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made shall have the right, (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel account and risk, and at the expense expense, of the Company has been specifically authorized indemnifying party.
(b) Anything in writing by this Section 9.4 to the Company. The contrary notwithstanding, the indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed . The indemnified party shall not enter into any settlement or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights compromise of any person; and (III) provides as action, suit or proceeding or consent to the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution entry of any Third judgment.
(c) The indemnifying party and the indemnified party shall reasonably cooperate in all aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article IX, including by providing the other Party Proceeding with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. The obligations of the Sellers, the Purchaser (as applicable, the "INDEMNIFYING PARTY") to indemnify Indemnified Parties under Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "CLAIM"), shall be subject to the following terms and conditions:
11.4.1 Promptly after the assertion receipt by any an Indemnified Party of notice by a third party of any proceeding against any Glencore Indemnitee that results complaint or may result in the incurrence by such Glencore Indemnitee commencement of any Loss for action or proceeding with respect to which such Glencore Indemnitee would Indemnified Party may be entitled to indemnification pursuant receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement (a "Third Party Proceeding")with respect to such claim only if, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except only to the extent that, such failure prejudices to notify the CompanyIndemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. ThereuponIn addition, the Company Indemnified Party shall have the right, upon written notice (the "Defence Notice") provide to the Glencore Indemnitee within 45 days after receipt Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Company of notice Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Third Indemnified Party. The Indemnifying Party Proceeding to conductmay at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defence defense of such claim. If the Third Indemnifying Party Proceeding in its own name orwithin thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, if necessary, in the name of Indemnified Parties will (upon further notice to the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not be included as part of pay or settle any Losses incurred by such claim.
11.4.2 Anything in this Section 11.4 to the Glencore Indemnitee unless: (i) contrary notwithstanding, the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term hereof the Company and delivery by the Glencore Indemnitee consentclaimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding; or (b) for other than monetary damages without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after In addition to the limitations set forth in Section 9.4, the obligations of any Indemnifying Party to indemnify any Indemnified Party under this Article 9, resulting from the assertion of liability by any third party parties (a “Claim”), will be subject to the following terms and conditions:
(a) Any Indemnified Party will give the Indemnifying Party written notice of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnifying Party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party’s obligations under this Article 9, except to the extent that the Indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within thirty (30) days after notice of any such Claim, fails to assume the defense of such Claim, the Company shall have the right, Indemnified Party against whom such claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any Losses incurred by time prior to settlement, compromise or final determination thereof.
(b) Anything in this Article 9 to the Glencore Indemnitee unless: contrary notwithstanding, (i) the Company failed to give Indemnified Party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentIndemnifying Party, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; or delayed, and (bii) the settlement: (I) releases Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for other than monetary damages to be borne by the Company) Indemnifying Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of the --------------------------- Seller to indemnify the Buyer Indemnitees under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Claim in the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and 45 on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, with separate counsel (which counsel shall act in an advisory capacity only), in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. After notice from the indemnifying party to reasonably participate in (but such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not control) the defence thereof, but the fees and be liable to such indemnified party for any expenses of the indemnified party's counsel that are subsequently incurred in connection with the defense thereof; provided, however, that the -------- ------- expense of such indemnified party's counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: indemnifying party if (i) the Company failed indemnifying party requested such separate counsel to give the Defence Notice; participate or (ii) in the employment reasonable opinion of counsel to the indemnified party, a significant conflict of interest exists between the indemnifying party, on the one hand, and the indemnified party, on the other hand, that would make such counsel at separate representation clearly advisable.
(c) Without the expense prior written consent of the Company has been specifically authorized in writing by the Company. The indemnified party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Company) claimant or plaintiff to the Company and its Affiliates (in the case indemnified party of a defence conducted by the Glencore Indemnitee) written release from all liabilities liability in respect of such Claim. In addition, whether or not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to the entry of any judgment with respect thereto, without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld or delayed), and obligations the indemnifying party will not be subject to any liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) Upon execution of this Agreement and delivery of the Seller Disclosure Schedule, the Seller shall be deemed to have satisfied the notice requirement of Section 7.4(a) with respect to such Third Party Proceeding; all matters set forth in Section 2.8 of the Seller Disclosure Schedule.
(IIe) contains no admission on The indemnifying party and the part of Glencore Indemnitee and its Affiliates (indemnified party shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights all aspects of any person; and (III) provides as the claimant's investigation, defense, pre-trial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Sources: Exchange Agreement (Ticketmaster Online Citysearch Inc)
Third Party Indemnification. Promptly after The obligations of the assertion by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Stockholders to indemnify the Glencore Buyer Indemnitees under Section 7.2 hereof and the obligations of TBNA, TBFS and the Surviving Corporation to indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third party (each, as the case may be, a “Claim”), shall be further subject to the following terms and conditions:
(i) Any party against whom any Claim is asserted shall give the party (or the parties) required to provide indemnity hereunder written notice of such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4. If the indemnifying party, within twenty (20) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Buyer Indemnitee or the Seller Indemnitee, except to as the extent case may be, (each, an “Indemnitee”), against whom such failure prejudices the Company. Thereupon, the Company Claim has been made shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part obligated, to undertake the defense, compromise or settlement of any Losses incurred by such Claim on behalf and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed to give expense, of the Defence Notice; or indemnifying party.
(ii) Anything in this Section 7.4 to the employment of such counsel at contrary notwithstanding, the expense of the Company has been specifically authorized in writing by the Company. The Indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (A) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentaction, which consent shall not be unreasonably withheldsuit or proceeding, delayed or conditioned; or (bB) for other than monetary damages without the settlement: (I) releases prior written consent of the Glencore Indemnitee. Notwithstanding the foregoing provisions of Article 7, no claim for damages may be asserted by an Indemnitee and its Affiliates (in the case event the Indemnitee had actual knowledge of a defence conducted by the Company) or the Company and its Affiliates (in the case breach of a defence conducted by representation or warranty on or prior to the Glencore Indemnitee) from all liabilities Effective Time and obligations with respect did not disclose such breach to such Third Party Proceeding; (II) contains no admission the other Indemnitee on or prior to the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithEffective Time.
Appears in 1 contract
Sources: Acquisition Agreement and Plan of Merger (Team Financial Inc /Ks)
Third Party Indemnification. The obligations of the Seller, or the (as ---------------------------- applicable, the "INDEMNIFYING PARTY") to indemnify Indemnified Parties under Section 13.1 or Section 13.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a "CLAIM"), shall be subject to the following terms and conditions:
13.4.1 Promptly after the assertion receipt by any an Indemnified Party of notice by a third party of any proceeding against any Glencore Indemnitee that results complaint or may result in the incurrence by such Glencore Indemnitee commencement of any Loss for action or proceeding with respect to which such Glencore Indemnitee would Indemnified Party may be entitled to indemnification pursuant receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Seller, or the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement (a "Third Party Proceeding")with respect to such claim only if, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except only to the extent that, such failure prejudices to notify the CompanyIndemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. ThereuponIn addition, the Company Indemnified Party shall have the right, upon written notice (the "Defence Notice") provide to the Glencore Indemnitee within 45 days after receipt Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Company of notice Indemnifying Party to support and verify. the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Third Indemnified Party. The Indemnifying Party Proceeding to conductmay at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defence defense of such claim. If the Third Indemnifying Party Proceeding in its own name orwithin thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, if necessary, in the name of Indemnified Parties will (upon further notice to the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not be included as part of pay or settle any Losses incurred by such claim.
13.4.2 Anything in this Section 13.4 to the Glencore Indemnitee unless: (i) contrary notwithstanding, the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term hereof the Company and delivery by the Glencore Indemnitee consentclaimant or plaintiff to the Indemnified Parties of a written release fkom all liability in respect of such action, suit or proceeding; or (b) for other than monetary damages without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article IX with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of a Buyer Claim or of a claim under Section 9.10, respectively, by third parties (including Governmental Entities) (a “Claim”), shall be subject to the following terms and conditions:
(a) Any party against whom any third Claim is asserted shall give the party required to provide indemnity hereunder written notice of any proceeding against any Glencore Indemnitee that results such Claim promptly after learning of such Claim (with such notice satisfying the requirements of Section 9.2(b)(vi) or 9.3(b)(vi), as the case may result in be), and the incurrence indemnifying party may at its option undertake the defense thereof by such Glencore Indemnitee representatives of its own choosing and shall provide written notice of any Loss for which such Glencore Indemnitee would be entitled undertaking to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third indemnified party. The failure Failure to promptly provide such give prompt written notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Article IX, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt written notice. The indemnified party shall, and shall cause its employees and representatives to, cooperate with the Companyindemnifying party in connection with the settlement or defense of such Claim and shall provide the indemnifying party with all available information and documents concerning such Claim. ThereuponThe indemnifying party shall provide the indemnified party with copies of all non-privileged communications and other information in respect of the Claim. If the indemnifying party, the Company shall have the right, upon within thirty (30) days after written notice (of any such Claim, fails to assume the "Defence Notice") defense of such Claim, or, after assuming defense, negligently fails to the Glencore Indemnitee within 45 days defend and fails to call after receipt by the Company of reasonable written notice of the Third Party Proceeding to conduct, at its own expensesame, the defence of indemnified party against whom such claim has been made shall (upon further written notice to the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any Losses incurred by time prior to settlement, compromise or final determination thereof upon written notice to the Glencore Indemnitee unless: indemnified party.
(b) Anything in this Section 9.4 to the contrary notwithstanding, (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed or conditioned; or and (bii) the settlement: (I) releases indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding, or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for relief other than monetary damages to be borne by the Company) indemnifying party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. The obligations of the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnified Parties under this Article with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “CLAIM”), shall be subject to the following terms and conditions:
11.4.1 Promptly after the assertion receipt by any an Indemnified Party of notice by a third party of any proceeding against any Glencore Indemnitee that results complaint or may result in the incurrence by such Glencore Indemnitee commencement of any Loss for action or proceeding with respect to which such Glencore Indemnitee would Indemnified Party may be entitled to indemnification pursuant receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement (a "Third Party Proceeding")with respect to such claim only if, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except only to the extent that, such failure prejudices to notify the CompanyIndemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. ThereuponIn addition, the Company Indemnified Party shall have the right, upon written notice (the "Defence Notice") provide to the Glencore Indemnitee within 45 days after receipt Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Company of notice Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Third Indemnified Party. The Indemnifying Party Proceeding to conductmay at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defence defense of such claim. If the Third Indemnifying Party Proceeding in its own name orwithin thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, if necessary, in the name of Indemnified Parties will (upon further notice to the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not be included as part of pay or settle any Losses incurred by such claim.
11.4.2 Anything in this Section 10.4 to the Glencore Indemnitee unless: (i) contrary notwithstanding, the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term hereof the Company and delivery by the Glencore Indemnitee consentclaimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding; or (b) for other than monetary damages without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Sources: Securities Exchange Agreement (Egpi Firecreek, Inc.)
Third Party Indemnification. Promptly after the assertion by any third party Except as provided in Section 5.15 of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")with respect to the Selected Litigation Matters, such Glencore Indemnitee shall promptly notify the Company obligations of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Sellers to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 8.2 of this Agreement with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 8.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by representatives of its own choosing; provided, however, that (i) such party shall have first reasonably demonstrated its financial ability to provide full indemnification to the indemnified party, and (ii) the indemnifying party may not undertake the defense of Claims solely related to or seeking non-monetary relief or Claims that solely involve criminal allegations or Claims for which the indemnified party demonstrates, to the reasonable satisfaction of the indemnifying party, that an adverse determination with respect to such Claim would be materially adverse to its business, assets, financial condition, results of operations or operations (in each case, taken as a whole), unless the indemnified party does not defend, contest or settle such Claim, then the indemnifying party may contest and defend (but not settle) such claim. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article VIII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. Notice of intention so to contest and defend shall be given by the Companyindemnifying party to the indemnified party within 20 business days after the indemnified party provides a notice of Claim (but in all events, at least five business days prior to the date that an answer to such Claim is due to be filed). ThereuponIf the 62 indemnifying party fails to assume the defense of such Claim within the required time period, the Company shall Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the indemnifying party) have the rightright to undertake the defense, upon written notice (compromise or settlement of such Claim on behalf of and for the "Defence Notice") account and risk, and at the expense, of the indemnifying party, subject to the Glencore Indemnitee within 45 days after receipt by the Company of notice right of the Third Party Proceeding indemnifying party to conductassume the defense of such Claim at any time prior to settlement, at its own expensecompromise or final determination of such Claim. If the indemnifying party assumes such defense, the defence of Buyer Indemnitee or the Third Party Proceeding in its own name orSeller Indemnitee, if necessaryas the case may be, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in the defense thereof and to employ counsel, at its own expense (but which expense shall not control) constitute a Buyer Damage or Seller Damage, as applicable, unless the defence thereofBuyer Indemnitee or the Seller Indemnitee, but as the case may be, reasonably determines that because of a conflict of interest, the indemnifying party may not adequately represent, any interests of the Buyer Indemnitee or the Seller Indemnitee, as the case may be or unless the indemnifying party has not employed counsel to assume the defense of such action within a reasonable time, and only to the extent that such expenses are reasonable), separate from the counsel employed by the Buyer Indemnitee or the Seller Indemnitee, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of such counsel shall not be included as part of any Losses incurred employed by the Glencore Buyer Indemnitee unless: or the Seller Indemnitee, as the case may be, for any period during which the indemnifying party has not assumed the defense thereof.
(ib) Anything in this Section 8.4 to the Company failed to give contrary notwithstanding, the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the Seller Indemnitee or Buyer Indemnitee, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to as applicable, shall provide each other such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, cooperation as may be reasonably requested and at the expense of the indemnifying party in connection therewithall aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VIII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
(d) Buyer shall not be deemed to have notice of any claim or breach by the Sellers of any representation, warranty, covenant or agreement under this Agreement by virtue of knowledge acquired on or prior to the date of the Closing by an employee of any Company or Subsidiary. In addition to the limitations set forth in Sections 8.2(b)(ii) and 8.3(b)(ii) above, any indemnification hereunder shall be calculated after deduction of or for (i) amounts actually paid to the indemnified party or, if such indemnified party is Buyer, to the Company, under any insurance policies in respect of the Buyer Damages or Seller Damages, as applicable, net of any costs incurred by the indemnified party to obtain such amount or as a result of receiving such amount; and (ii) any net Tax benefit to the indemnified party or any of its affiliates, or in the event the indemnified party is the Company, the Company or any of its affiliates, to the extent actually realized by such party as a direct result of such Buyer Damages or Seller Damages, including the present value, determined by discounting at 10.5%, of the benefit arising from an increase in the Tax basis of assets, net of any Tax costs incurred by the indemnified party or the Company as the result of the receipt of indemnification payments hereunder, including the present value, determined by discounting at the applicable federal rate, of the costs arising from a reduction in the Tax basis of the assets. In calculating the amount of net Tax benefit, the indemnified party and its affiliates and the Company and its affiliates shall be presumed to pay Taxes at a 37.5% Tax rate. Buyer and Sellers’ Representative shall provide the other, as applicable, with such documentation as may be reasonably requested by the other in order to ascertain or confirm the amount of any net Tax benefit or net Tax cost referred to herein.
Appears in 1 contract
Sources: Stock Purchase Agreement
Third Party Indemnification. Promptly after (a) If the assertion by Injured Party settles or compromises any third third-party claims prior to giving a Notice of Claim to the Indemnifying Party, the Indemnifying Party shall be released from its indemnity obligation.
(b) With respect to any proceeding against action or any Glencore Indemnitee that results claim set forth in a Notice of Claim relating to a third-party claim, the Indemnifying Party may defend, in good faith and at its expense, any such claim or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")demand, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore IndemniteeInjured Party, except to the extent such failure prejudices the Company. Thereuponat its expense, the Company shall have the right, upon written notice (but not the "Defence Notice") obligation, to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) at its expense in the defence thereofdefense of any such third-party claim. So long as the Indemnifying Party is defending any such third-party claim, but the fees and expenses Injured Party shall not settle or compromise such third-party claim without the consent of such counsel the Indemnifying Party which consent shall not be included as part of any Losses incurred unreasonably withheld. If such claim is settled by the Glencore Indemnitee unless: Injured Party without the Indemnifying Party’s consent, the Injured Party shall be deemed to have waived all rights hereunder for money damages arising out of such claim. The Indemnifying Party may settle or compromise such third-party claim without the consent of the Injured Party, if (i) the Company failed settlement or compromise involves only the payment of monetary damages and included in such settlement or compromise as an unconditional term thereof is the delivery to give the Defence Notice; or Injured Party of a written release from all liability in respect of such third-party claim. and (ii) in the employment case of a claim relating to Taxes, such counsel at settlement or compromise is on a basis that would not increase any tax liabilities incurred by, or adversely impact any tax attributes of, the expense Injured Party or its Affiliates (unless the Indemnifying Party is indemnifying the Injured Party and its Affiliates for any such increase in tax liabilities or adverse impact on tax attributes). Otherwise, the Indemnifying Party may not settle or compromise such third-party claim without the consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentInjured Party, which consent shall not be unreasonably withheld, delayed . The Injured Party shall make available to the Indemnifying Party or conditioned; or (b) its representatives all records and other materials reasonably required for use in contesting any third-party claim. The Injured Party shall cooperate in good faith with the settlement: (I) releases the Glencore Indemnitee and its Affiliates (Indemnifying Party in the case defense of all such claims.
(c) If the Indemnifying Party fails to assume the defense of any such third-party claims, within thirty (30) days after receipt of a defence conducted by Notice of Claim (or such shorter period of time that the Company) Injured Party may be required to respond to any suit or governmental action), the Company Injured Party shall have the right to undertake the defense, settle or compromise any such third-party claim at the risk and its Affiliates (expense of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof. The failure of the Indemnifying Party to respond in writing to the case aforesaid notice of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations Injured Party with respect to such Third third-party claim within thirty (30) days after receipt thereof shall be deemed an election not to defend same. The Indemnifying Party Proceeding; (II) contains no admission on will not, however, be responsible for any Damages if and to the part of Glencore Indemnitee and its Affiliates (extent that they arise from action taken or omitted to be taken by the Injured Party in the case bad faith, fraudulently, negligently or as a result of a defence conducted breach of this Agreement by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithInjured Party.
Appears in 1 contract
Sources: Acquisition Agreement (Tekelec)
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under Sections 12.1 or 12.2 with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a including Governmental Entities) (an "Third Party ProceedingIndemnification Claim"), shall be subject to the following terms and conditions:
12.4.1. Any party against whom any Indemnification Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Indemnification Claim promptly notify the Company after learning of such Third Party Proceeding. Such Indemnification Claim (with such notice satisfying the requirements of Section 12.3.3), and to the extent such matter involves a third party claim, the indemnifying party may, at its option, undertake the defense thereof by representatives of its own choosing and shall also specify with reasonable detail provide written notice of any such undertaking to the factual basis for the Third Party Proceeding and the amount claimed by the third indemnified party. The failure Failure to promptly provide such give prompt written notice of an Indemnification Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article 12, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt written notice. The indemnified party, at the Companyindemnifying party’s expense, shall, and shall cause its employees and representatives to, reasonably cooperate with the indemnifying party in connection with the settlement or defense of such Indemnification Claim and shall provide the indemnifying party with all available information and documents concerning such Indemnification Claim. ThereuponIf the indemnifying party, within thirty (30) days after written notice of any such Indemnification Claim, fails to assume the defense of such Indemnification Claim, the Company indemnified party against whom such claim has been made shall have the right, (upon further written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of any Losses incurred by and for the Glencore Indemnitee unlessaccount and risk, and at the expense, of the indemnifying party.
12.4.2. Anything in this Section 12.4 to the contrary notwithstanding: (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any persondelayed; and (IIIii) provides as the claimant's indemnifying party shall not enter into any settlement or plaintiff`s sole compromise of any action, suit or proceeding, or consent to the entry of any judgment for relief other than monetary damages (that are paid in full to be borne exclusively by the Company)indemnifying party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
12.4.3. Each Party Nothing in this Agreement, the Sale Approval Order or any Ancillary Agreements including, without limitation, any right to indemnification in favor of Purchaser, shall cooperatealter or otherwise vitiate the legal effect of the bar date order and discharge injunction under a confirmation on any third party claim against Seller or DTI that would otherwise be barred or discharged thereunder. Notwithstanding anything to the contrary in this Agreement or in any Ancillary Agreement, and cause their respective Affiliates to cooperateupon receipt of any such third party claim, Seller and/or DTI, as appropriate, in the defense its sole discretion, may elect to defend against such claim and settle or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished otherwise resolve such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithclaim without Purchaser's consent.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Third Party Indemnification. (1) Promptly after the assertion by any third party of any proceeding Third Party Claim (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Claim or Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, such Glencore Indemnitee shall will promptly notify the Company party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by the third party, or if such amount is not then determinable, a reasonable estimate of the likely amount of the Third Party Claim. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires) to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee.
(2) The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld. Any Glencore Indemnitee shall will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses incurred by the Glencore Indemnitee unless: unless (i) the Company Indemnitor failed to give the Defence Notice; , including the acknowledgement and agreement to be set out therein within the prescribed period, (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Seller to indemnify the Buyer Indemnitees under Section 10.2 of this Agreement with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 10.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may, at its option, undertake the defense of such Claim by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim under this Agreement shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party obligations under this Article X, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have Buyer Indemnitee or the rightSeller Indemnitee, as the case may be, against whom such Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination of such Claim.
(b) Anything in this Section 10.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bc) The indemnifying party and the settlement: (I) releases the Glencore Indemnitee and its Affiliates (indemnified party shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pretrial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought under this Article X, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of PM Holdings to indemnify the TCW Indemnitees under Section 8.2 hereof with respect to TCW Damages, and of TCW/EMCO Holding to indemnify PM Holdings under Section 8.3 hereof with respect to PM Damages, in either case resulting from any assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification parties, whether pursuant to this Agreement any investigation, regulatory or governmental proceeding, legal action or other dispute (each, as the case may be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted (the "Indemnified Party") will give the other party (the "Indemnifying Party") written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnifying Party may at its option undertake the defense thereof by representatives of its own choosing. Failure of the third party. The failure Indemnified Party to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party's obligations under this Section 8.4(a), except to the extent the Indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within seven days after notice of any such Claim or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have the right, Indemnified Party against whom such claim has been made will (upon written no further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the Indemnifying Party, subject to give the Defence Notice; or (ii) right of the employment Indemnifying Party, to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof.
(b) Notwithstanding anything in this Section 8.4 to the expense of contrary, the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and Indemnifying Party, without the Glencore Indemnitee consentprior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bc) the settlement: (I) releases the Glencore Indemnitee TCW/EMCO Holding and its Affiliates (PM Holdings shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pre-trial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought pursuant to this Article VIII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phoenix Companies Inc/De)
Third Party Indemnification. Promptly after the assertion by any third party of any proceeding Third Party Claim (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Loss Claims for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, such Glencore Indemnitee shall will promptly notify the Company party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by of the third partyThird Party Claim, or if such amount is not then determinable, a reasonable estimate of the likely amount of the Third Party Claim. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires) to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee provided that: (a) the Indemnitor acknowledges and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to pay for all Claims arising from or relating to such Third Party Proceeding and (b) the Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such Claims. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld. Any Glencore Indemnitee shall will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses Claims incurred by the Glencore Indemnitee unless: unless (i) the Company Indemnitor failed to give the Defence Notice; , including the acknowledgement and agreement to be set out therein within the prescribed period, (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both parties under applicable ethical rules, or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after (a) The Indemnitor may at its option undertake the assertion by any third party defense of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company Claim by representatives of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except its own choosing reasonably acceptable to the extent Indemnified Party. If the Indemnitor assumes such failure prejudices the Company. Thereupondefense, the Company Indemnified Party shall have the right, upon written notice right (but not the "Defence Notice"duty) to participate in the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding defense thereof and to conductemploy counsel, at its own expense, separate from the defence counsel employed by the Indemnitor. If, however, the Indemnified Party reasonably determines in the judgment of its counsel that representation by the Indemnitor's counsel of both the Indemnitor and the Indemnified Party would present such counsel with a material conflict of interest, then such Indemnified Party may employ separate counsel to represent or defend it in any such claim, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such separate counsel. If the Indemnitor, within 30 days after notice of any such Third Party Proceeding in its own name orClaim, if necessaryfails to assume the defense of such Third Party Claim, in the name of Indemnified Party against whom such claim has been made will (upon further notice to the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnitor) have the right to employ separate counsel in any undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the Indemnitor, subject to the right of the Indemnitor to assume the defense of such Third Party Proceeding Claim at any time prior to reasonably participate settlement, compromise or final determination thereof.
(b) Anything in (but not control) this Section 11.4 to the defence thereofcontrary notwithstanding, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and Indemnitor shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment (i) which does not include a written release of the Indemnified Party from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to be borne by the Indemnitor, without the prior written consent of the Indemnified Party. The Indemnified Party will have no liability to any third party with respect to such any settlement or compromise of Third Party Proceeding unless: Claims effected without its consent.
(ac) the Company The Indemnitor and the Glencore Indemnitee consent, which consent Indemnified Party shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pre- trial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought pursuant to this Article IX, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Seller to indemnify Buyer Indemnitees under Section 9.2 with respect to Buyer Damages and the obligations of Buyer to indemnify Seller Indemnitees under Section 9.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following additional terms and conditions. This Section 9.4 shall not apply to any third claims or proceedings with respect to Taxes, which shall be governed by Section 5.4.
(a) Any Party against whom any Claim is asserted (the “Indemnified Party”) will give the indemnifying party (the “Indemnifying Party”) written notice of any proceeding against any Glencore Indemnitee such Claim promptly after learning of such Claim, and the Indemnifying Party may at its option and its sole expense undertake the defense thereof using reputable counsel and representatives of its own choosing who are reasonably satisfactory to the Indemnified Party; provided that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would Indemnified Party shall be entitled to indemnification conduct and control the defense thereof (at their election and sole expense) if such Claim, based on the remedy sought, would reasonably be expected to subject any party to criminal liability of, or injunctive or other equitable relief against, the Indemnified Party (except as set forth in Section 6.10). All Claims are subject to the remaining obligations set forth in this Section 9.4(a) and Section 9.4(b). The Indemnified Party may participate, through counsel chosen by it and at its own expense, in the defense of any Claim as to which the Indemnifying Party has elected to conduct and control the defense, compromise or settlement thereof; provided that if counsel to the Indemnifying Party is ethically prohibited from representing the Indemnified Party due to the existence or development of a conflict between the interests of the Indemnifying Party and the Indemnified Party, then the Indemnifying Party shall also pay the reasonable fees and expenses of one separate counsel (reasonably acceptable to the Indemnifying Party) of the Indemnified Party in connection with such Claim during such time as such a conflict exists. In the event, however, that the Indemnifying Party declines or does not elect to conduct and control the defense, compromise or settlement of any Claim or to employ reputable counsel reasonably satisfactory to the Indemnified Party, in either case within such 30 day period, then the Indemnifying Party shall pay the reasonable fees and expenses of counsel for the Indemnified Party as incurred to the extent the Indemnifying Party is obligated to indemnify the Indemnified Party for such fees and expenses pursuant to this Agreement (a "Third Party Proceeding"Section 9.4(a), as applicable; provided, however, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one firm for all Indemnified Parties in any Claim. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use commercially reasonable efforts to keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such Glencore Indemnitee matter and shall promptly notify the Company of furnish such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding records and the amount claimed other information as may be reasonably requested by the third partyIndemnifying Party or Indemnified Party (as the case may be) in connection therewith. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party’s obligations under this ARTICLE IX, except to the extent the Indemnifying Party is materially prejudiced by such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give prompt notice.
(b) Neither the Defence Notice; or (ii) Indemnifying Party nor the employment of such counsel at Indemnified Party, as the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding case may be, shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementpay, compromise compromise, settle or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which indemnification is being sought herein without the Company and prior written consent of the Glencore Indemnitee consentother Party, which consent shall may not be unreasonably withheld, delayed or conditioned; provided, however, that the Indemnified Party’s/Indemnifying Party’s (as applicable) consent will not be required if such settlement, compromise or consent includes an unconditional release of the Indemnified Party/Indemnified Party (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemniteeas applicable) from all liabilities liability arising out of such claim and obligations such settlement, compromise or consent does not contain any equitable order, judgment or term that may adversely affect the business of the Indemnified Party/Indemnifying Party (as applicable) (other than as the result of money damages covered by the indemnity). If the Indemnifying Party is entitled to conduct and control the defense of any particular claim pursuant to this Section 9.4, but elects not to do so, then the Indemnifying Party shall not unreasonably withhold its consent to any settlement or compromise with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithclaim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Markwest Energy Partners L P)
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article VII with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Section 7.4, except to the extent that the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, fails to assume the defense of such Claim, the Company shall have the right, indemnified party against whom such Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 7.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party without the Glencore Indemnitee consentprior written consent of the indemnified party, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Purchase Agreement (Ferrellgas Partners Finance Corp)
Third Party Indemnification. Promptly after the assertion by any third party Except as provided in Section 5.15 of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")with respect to the Selected Litigation Matters, such Glencore Indemnitee shall promptly notify the Company obligations of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Sellers to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 8.2 of this Agreement with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 8.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by representatives of its own choosing; provided, however, that (i) such party shall have first reasonably demonstrated its financial ability to provide full indemnification to the indemnified party, and (ii) the indemnifying party may not undertake the defense of Claims solely related to or seeking non-monetary relief or Claims that solely involve criminal allegations or Claims for which the indemnified party demonstrates, to the reasonable satisfaction of the indemnifying party, that an adverse determination with respect to such Claim would be materially adverse to its business, assets, financial condition, results of operations or operations (in each case, taken as a whole), unless the indemnified party does not defend, contest or settle such Claim, then the indemnifying party may contest and defend (but not settle) such claim. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article VIII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. Notice of intention so to contest and defend shall be given by the Companyindemnifying party to the indemnified party within 20 business days after the indemnified party provides a notice of Claim (but in all events, at least five business days prior to the date that an answer to such Claim is due to be filed). ThereuponIf the indemnifying party fails to assume the defense of such Claim within the required time period, the Company shall Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the indemnifying party) have the rightright to undertake the defense, upon written notice (compromise or settlement of such Claim on behalf of and for the "Defence Notice") account and risk, and at the expense, of the indemnifying party, subject to the Glencore Indemnitee within 45 days after receipt by the Company of notice right of the Third Party Proceeding indemnifying party to conductassume the defense of such Claim at any time prior to settlement, at its own expensecompromise or final determination of such Claim. If the indemnifying party assumes such defense, the defence of Buyer Indemnitee or the Third Party Proceeding in its own name orSeller Indemnitee, if necessaryas the case may be, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in the defense thereof and to employ counsel, at its own expense (but which expense shall not control) constitute a Buyer Damage or Seller Damage, as applicable, unless the defence thereofBuyer Indemnitee or the Seller Indemnitee, but as the case may be, reasonably determines that because of a conflict of interest, the indemnifying party may not adequately represent, any interests of the Buyer Indemnitee or the Seller Indemnitee, as the case may be or unless the indemnifying party has not employed counsel to assume the defense of such action within a reasonable time, and only to the extent that such expenses are reasonable), separate from the counsel employed by the Buyer Indemnitee or the Seller Indemnitee, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of such counsel shall not be included as part of any Losses incurred employed by the Glencore Buyer Indemnitee unless: or the Seller Indemnitee, as the case may be, for any period during which the indemnifying party has not assumed the defense thereof.
(ib) Anything in this Section 8.4 to the Company failed to give contrary notwithstanding, the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the Seller Indemnitee or Buyer Indemnitee, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to as applicable, shall provide each other such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, cooperation as may be reasonably requested and at the expense of the indemnifying party in connection therewithall aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VIII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
(d) Buyer shall not be deemed to have notice of any claim or breach by the Sellers of any representation, warranty, covenant or agreement under this Agreement by virtue of knowledge acquired on or prior to the date of the Closing by an employee of any Company or Subsidiary. In addition to the limitations set forth in Sections 8.2(b)(ii) and 8.3(b)(ii) above, any indemnification hereunder shall be calculated after deduction of or for (i) amounts actually paid to the indemnified party or, if such indemnified party is Buyer, to the Company, under any insurance policies in respect of the Buyer Damages or Seller Damages, as applicable, net of any costs incurred by the indemnified party to obtain such amount or as a result of receiving such amount; and (ii) any net Tax benefit to the indemnified party or any of its affiliates, or in the event the indemnified party is the Company, the Company or any of its affiliates, to the extent actually realized by such party as a direct result of such Buyer Damages or Seller Damages, including the present value, determined by discounting at 10.5%, of the benefit arising from an increase in the Tax basis of assets, net of any Tax costs incurred by the indemnified party or the Company as the result of the receipt of indemnification payments hereunder, including the present value, determined by discounting at the applicable federal rate, of the costs arising from a reduction in the Tax basis of the assets. In calculating the amount of net Tax benefit, the indemnified party and its affiliates and the Company and its affiliates shall be presumed to pay Taxes at a 37.5% Tax rate. Buyer and Sellers’ Representative shall provide the other, as applicable, with such documentation as may be reasonably requested by the other in order to ascertain or confirm the amount of any net Tax benefit or net Tax cost referred to herein.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article VI with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a “Claim”), shall be subject to the following terms and conditions:
(a) Any party against whom any third Claim is asserted shall give the party required to provide indemnity hereunder written notice, setting forth with reasonable specificity the facts and circumstances of which such party has received notice, of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such Claim, and if the party giving such notice shall also specify with reasonable detail is an indemnified party, specifying the factual basis hereunder upon which the indemnified party’s claim for the Third Party Proceeding indemnification is asserted, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Article VI, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, fails to assume the defense of such Claim, the Company indemnifying party shall lose its right to contest, defend, litigate and settle such a Claim and the indemnified party against whom such claim has been made shall, without prejudice to its right, if any, of indemnification hereunder, (upon further notice to the indemnifying party) have the rightright to undertake the defense, upon written notice (compromise or settlement of such claim on behalf of and for the "Defence Notice") account and risk, and at the reasonable expense, of the indemnifying party, subject to the Glencore Indemnitee within 45 days after receipt right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. If, pursuant to the preceding sentence, the indemnified party so contests, defends, litigates or settles a Claim for which it is entitled to indemnification hereunder, the indemnified party shall, subject to any defense that the indemnifying party may have that it is not obligated to provide indemnity, be reimbursed by the Company indemnifying party for the reasonable attorneys’ fees and other expenses of notice contesting, defending, litigating and settling the Claim which are incurred from time to time, promptly following the presentation to the indemnifying party of the Third Party Proceeding to conduct, at its own expenseitemized bills for such attorneys’ fees and other expenses.
(b) Except as herein provided, the defence of indemnified party shall not, and the Third Party Proceeding in its own name orindemnifying party shall, have the right to contest, defend, litigate or settle such Claim, if necessary, the defense of a Claim is so tendered and within 30 days thereafter the indemnifying party accepts such tender and acknowledges in the name of the Glencore Indemniteewriting (but without waving any defenses it may have that it is not obligated to provide indemnity) its indemnification obligation. Any Glencore Indemnitee The indemnified party shall have the right to employ separate be represented by counsel at its own expense in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. The indemnifying party shall lose its right to contest, defend, litigate and settle the Claim if it shall fail to diligently contest the Claim. So long as the indemnifying party has not lost its right to contest, defend, litigate and settle as herein provided, the indemnifying party shall have the right to contest, defend and litigate the Claim and shall have the right to enter into any settlement of any Claim; provided, however, the indemnifying party may not enter into any settlement of any Claim without the prior written consent of the indemnified party, not to be unreasonably withheld or delayed, if pursuant to or as a result of such settlement, (i) injunctive or other equitable relief would be imposed against the indemnified party or (ii) such settlement would or could reasonably participate in (but be expected to lead to any liability or create any financial or other obligation on the part of the indemnified party. The indemnifying party shall not control) be entitled to assume control of a Claim and shall pay the defence thereof, but the reasonable fees and expenses of such counsel shall not be included as part of any Losses incurred retained by the Glencore Indemnitee unless: indemnified party if (iA) the Company failed Claim relates to give or arises in connection with any criminal proceeding, action, indictment or allegation, (B) the Defence Notice; Claim seeks injunctive or other equitable relief or (iiC) the employment of such counsel at indemnified party in its notice to the expense indemnifying party of the Company has been specifically authorized in writing by the Company. The party conducting the defence Claim states that, based on advice of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementcounsel, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and it believes that its Affiliates (interests in the case of a defence conducted by the Company) Claim is or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause can reasonably be expected to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithadverse to the interests of the indemnifying party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Higher One Holdings, Inc.)
Third Party Indemnification. Promptly after the assertion by any third party The obligations of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation PII to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 7.2 of this Agreement with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 of this Agreement with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by counsel of its own choosing; provided that such counsel is not reasonably objected to by the indemnified party. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party’s obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have Buyer Indemnitee or the rightSeller Indemnitee, as the case may be, against whom such Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel account and risk, and at the expense expense, of the Company has been specifically authorized indemnifying party.
(b) Anything in writing by this Section 7.4 to the Company. The contrary notwithstanding, the indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bc) The indemnifying party and the settlement: (I) releases the Glencore Indemnitee and its Affiliates (indemnified party shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pretrial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought under this Article VII, including by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article IX with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of a Buyer Claim or of a claim under Section 9.10, respectively, by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement parties (including Governmental Entities) (a "Third Party ProceedingClaim"), shall be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such Claim (with such notice shall also specify with reasonable detail satisfying the factual basis for requirements of Section 9.2(b)(vi) or 9.3(b)(vi), as the Third Party Proceeding case may be), and the amount claimed indemnifying party may at its option undertake the defense thereof by representatives of its own choosing and shall provide written notice of any such undertaking to the third indemnified party. The failure Failure to promptly provide such give prompt written notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article IX, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt written notice. The indemnified party shall, and shall cause its employees and representatives to, cooperate with the Companyindemnifying party in connection with the settlement or defense of such Claim and shall provide the indemnifying party with all available information and documents concerning such Claim. ThereuponThe indemnifying party shall provide the indemnified party with copies of all non-privileged communications and other information in respect of the Claim. If the indemnifying party, the Company shall have the right, upon within thirty (30) days after written notice (of any such Claim, fails to assume the "Defence Notice") defense of such Claim, or, after assuming defense, negligently fails to the Glencore Indemnitee within 45 days defend and fails to call after receipt by the Company of reasonable written notice of the Third Party Proceeding to conduct, at its own expensesame, the defence of indemnified party against whom such claim has been made shall (upon further written notice to the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any Losses incurred by time prior to settlement, compromise or final determination thereof upon written notice to the Glencore Indemnitee unless: indemnified party.
(b) Anything in this Section 9.4 to the contrary notwithstanding, (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed or conditioned; or and (bii) the settlement: (I) releases indemnifying party shall not enter into any settlement or compromise of any action, suit or proceeding, or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for relief other than monetary damages to be borne by the Company) indemnifying party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (International Paper Co /New/)
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any third Claim is asserted will give the party required to provide indemnity hereunder written notice of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Article VII, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, fails to assume the defense of such Claim, the Company shall have the right, indemnified party against whom such claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any Third Party Proceeding time prior to reasonably settlement, compromise or final determination thereof; provided, however, that (i) the indemnifying party shall permit the indemnified party to participate in (but not control) the defence thereofsuch defense, but compromise or settlement through counsel chosen by such indemnified party, provided that the fees and expenses of such counsel shall not be included as part of any Losses incurred borne by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or such indemnified party and (ii) the employment indemnifying party shall be entitled to assume the defense of such action only to the extent the indemnifying party acknowledges its indemnity obligation; and, provided further, that the indemnifying party shall not be entitled to assume control of such defense, compromise or settlement and shall pay the fees and expenses of counsel at retained by the expense of indemnified party if (A) the Company claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (B) the claim seeks an injunction or equitable relief against the indemnified party; (C) the indemnified party has been specifically authorized advised in writing by counsel that a reasonable likelihood exists of a conflict of interest between the Companyindemnifying party and the indemnified party; or (E) upon petition by the indemnified party, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend such claim. The Notwithstanding the foregoing, 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 indemnifying party conducting for such claim unless the defence of any Third Party Proceeding indemnifying party shall keep have consented to such payment or settlement.
(b) Anything in this Section 7.4 to the other contrary notwithstanding, the indemnifying party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) without the Company and prior written consent of the Glencore Indemnitee consentindemnified party, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; delayed, unless such settlement, compromise or consent provides for (bi) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case a remedy consisting solely of a defence conducted monetary damages to be borne exclusively by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; indemnifying party, and (IIIii) provides as an unconditional release of the claimant's indemnified party in respect of claims underlying such settlement, compromise or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithconsent.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying party to indemnify any indemnified party under Section 9.4 with respect to Purchaser Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (including Governmental Entities) (an “Indemnification Claim”), shall be subject to the following terms and conditions, and the limitations of the first sentence of Section 9.4.A and Section 9.4.D(i) shall not apply to any such Indemnification Claims:
(i) Any party against whom any Indemnification Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Indemnification Claim promptly after learning of such Indemnification Claim (with such notice satisfying the requirements of Section 12.1), and to the extent such matter involves a third party claim, the indemnifying party may, at its option, undertake the defense thereof by representatives of its own choosing and shall provide written notice of any proceeding against any Glencore Indemnitee such undertaking to the indemnified party; provided that results or may result in the incurrence by such Glencore Indemnitee indemnifying party shall demonstrate to the reasonable satisfaction of any Loss for which such Glencore Indemnitee would be entitled the indemnified party its financial capability to indemnification pursuant undertake the defense. Failure to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company give prompt written notice of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice an Indemnification Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party’s obligations under this Section 9.4, except to the extent that the indemnifying party is actually prejudiced by such failure prejudices to give prompt written notice. The indemnified party, at the Companyindemnifying party’s expense, shall, and shall cause its employees and representatives to, reasonably cooperate with the indemnifying party in connection with the settlement or defense of such Indemnification Claim and shall provide the indemnifying party with all available information and documents concerning such Indemnification Claim. ThereuponIf the indemnifying party, within thirty (30) days after written notice of any such Indemnification Claim, fails to assume the defense of such Indemnification Claim, the Company indemnified party against whom such claim has been made shall have the right, (upon further written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of any Losses incurred by and for the Glencore Indemnitee unlessaccount and risk, and at the expense, of the indemnifying party.
(ii) Anything in this Section 9.4 to the contrary notwithstanding: (i) the Company failed to give indemnified party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentindemnifying party, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any persondelayed; and (IIIii) provides as the claimant's indemnifying party shall not enter into any settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution compromise of any Third Party Proceeding and action, suit or proceeding, or consent to the entry of any judgment for relief, without the prior written consent of the indemnified party, which consent shall furnish not be unreasonably withheld, conditioned or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after the assertion by any third party The obligations of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Seller to indemnify the Glencore IndemniteeBuyer Indemnitees under Sections 6.2 and 6.4 and the obligations of Buyer to indemnify the Seller Indemnitees under Section 6.3 hereof, in each case resulting from the assertion of Liability by a third party (each, as the case may be, a “Claim”), shall be further subject to the following terms and conditions:
(i) Any party against whom any Claim is asserted shall give the party (or parties) required to provide indemnity hereunder written notice of such Claim promptly after learning of such Claim, and the indemnifying party may at its option undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Section 6.5, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such Claim has been made shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part obligated, to undertake the defense, compromise or settlement of any Losses incurred by such Claim on behalf of and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed to give expense, of the Defence Notice; or indemnifying party.
(ii) Anything in this Section 6.5 to the employment of such counsel at contrary notwithstanding, the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term thereof the Company and delivery by the Glencore claimant or plaintiff to the Indemnitee consentof a written release from all Liability in respect of such action, suit or proceeding or (b) for other than monetary damages without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (United Fuel & Energy Corp)
Third Party Indemnification. Promptly after the assertion by any third party The obligation of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Seller to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 7.2 hereof and the obligation of the Buyer to indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third party (each, as the case may be, a “Claim”), shall be further subject to the following terms and conditions:
(i) Any party against whom any Claim is asserted shall give the party (or the parties) required to provide indemnity hereunder written notice of such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such Claim has been made shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part obligated, to undertake the defense, compromise or settlement of any Losses incurred by such Claim on behalf and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed to give expense, of the Defence Notice; or indemnifying party.
(ii) Anything in this Section 7.4 to the employment of such counsel at contrary notwithstanding, the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (A) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding, or (aB) for other than monetary damages without the Company and prior written consent of the Glencore Indemnitee consentIndemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Graymark Healthcare, Inc.)
Third Party Indemnification. Promptly after The obligations of the Designated Stockholders to indemnify the Parent Indemnitees under Section 9.2 of this Agreement with respect to the Parent Damages and the obligations of the Parent to indemnify the Designated Stockholders Indemnitees under Section 9.3 of this Agreement with respect to the Designated Stockholders' Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may, at its option, undertake the defense of such Claim by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim under this Agreement shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party obligations under this Article IX, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall have Parent Indemnitee or the rightDesignated Stockholder's Indemnitee, as the case may be, against whom such Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part Claim on behalf of any Losses incurred by and for the Glencore Indemnitee unless: (i) account and risk, and at the Company failed expense, of the indemnifying party, subject to give the Defence Notice; or (ii) right of the employment indemnifying party to assume the defense of such counsel Claim at any time prior to settlement, compromise or final determination of such Claim.
(b) Anything in this Section 9.4 to the expense of contrary notwithstanding, the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term of the delivery by the claimant or plaintiff to the Designated Stockholder's Indemnitee or the Parent Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Designated Stockholder's Indemnitee consentor the Parent Indemnitee, as the case may be, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bc) The Indemnifying Party and the settlement: (I) releases the Glencore Indemnitee and its Affiliates (Indemnified Party shall cooperate fully in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights aspects of any person; and (III) provides as the claimant's investigation, defense, pretrial activities, trial, compromise, settlement or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution discharge of any Third Party Proceeding claim in respect of which indemnity is sought under this Article IX, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Sources: Merger Agreement (Grey Wolf Inc)
Third Party Indemnification. Promptly after The respective obligations and liabilities of the Seller and Buyer (the “indemnifying party”) to the Buyer Indemnified Parties and the Seller Indemnified Parties, as appropriate (the “party to be indemnified”), under Sections 8.1 and 8.2 with respect to Claims resulting from the assertion of liability by any third party parties shall be subject to the following terms and conditions:
(a) As soon as practicable after receipt of notice of commencement of any proceeding against any Glencore Indemnitee that results action evidenced by service of process or may result in other legal pleading, the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would party to be entitled to indemnification pursuant to this Agreement (indemnified shall give the indemnifying party written notice thereof together with a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company copy of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third partyclaim, process or other legal pleading. The failure to promptly provide such deliver written notice shall not relieve to the Company indemnifying party within a reasonable time of the commencement of any obligation such action, if materially prejudicial to indemnify the Glencore Indemniteeits ability to defend such action, except shall relieve such indemnifying party of any liability to the extent such failure prejudices the Companyparty to be indemnified. Thereupon, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee The indemnifying party shall have the right to employ separate counsel in any Third Party Proceeding undertake the defense thereof by representatives of its own choosing and at its own expense; provided that the party to reasonably be indemnified may participate in (but not control) the defence thereofdefense with counsel of its own choice, but the fees and expenses of such which counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: party to be indemnified unless (i) the Company failed indemnifying party has agreed to give the Defence Notice; or pay such fees and expenses, (ii) the employment indemnifying party has failed to assume the defense of such action or (iii) the party to be indemnified has been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the indemnifying party (in which case, if the party to be indemnified informs the indemnifying party in writing that it elects to employ separate counsel at the expense of the Company has been specifically authorized indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of the party to be indemnified, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for the party to be indemnified, which firm shall be designated in writing by the Company. The party conducting to be indemnified.
(b) In the defence event that the indemnifying party, by the 30th day after receipt of notice of any Third Party Proceeding shall keep such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against such claim, the party reasonably apprised to be indemnified will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement of all significant developments such claim on behalf of and shall not enter into for the account and risk of the indemnifying party and at the indemnifying party’s expense, subject to the right of the indemnifying party to assume the defense of such claims at any time prior to settlement, compromise or final determination thereof.
(c) Notwithstanding the foregoing, the indemnifying party shall not settle any claim without the prior consent of the party to judgment with respect to be indemnified; provided, however, that such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheld, delayed or conditioned; or .
(bd) The party to be indemnified and the settlement: (I) releases indemnifying party will each cooperate with all reasonable requests of the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations other with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (any claim as described in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewiththis Section 8.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mobility Electronics Inc)
Third Party Indemnification. Promptly after The obligation of Buyer to --------------------------- indemnify the Seller Indemnitees under Section 4(a) hereof, in each case resulting from the assertion of a Claim by any a third party of any proceeding against any Glencore Indemnitee that results or (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), such Glencore Indemnitee shall promptly notify be further subject to the Company following terms and conditions:
(i) Any party against whom any Third Party Claim is asserted shall give the party required to provide indemnity hereunder written notice of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Claim promptly after learning of such Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the third indemnified party. The failure Failure to promptly provide such give prompt notice of a Third Party Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Section 4, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Third Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third Part Claim, the Company Seller Indemnitee against whom such Third Party Claim has been made shall have the right, upon written notice but shall not be obligated, to undertake the defense, compromise or settlement of such Third Party Claim on behalf of and for the account and risk, and at the expense, of the indemnifying party.
(the "Defence Notice"ii) Anything in this Section 4(b) to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expensecontrary notwithstanding, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (A) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding, or (aB) for other than monetary damages without the Company and prior written consent of the Glencore Indemnitee consentSeller Indemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of Seller to indemnify the Buyer Indemnitees under Section 5.2 hereof with respect to Buyer Damages and the obligations of the Buyers and Guarantor to indemnify the Seller Indemnitees under Section 5.3 hereof with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "“Third Party Proceeding"Claim”), such Glencore Indemnitee shall promptly notify will be subject to the Company following terms and conditions:
(a) Any party against whom any Third Party Claim is asserted will give the indemnifying Party written notice of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Claim promptly after learning of such Third Party Proceeding Claim, and the amount claimed indemnifying Party may, at its option, undertake the defense thereof by counsel reasonably satisfactory to the third partyindemnified Party. The failure Failure to promptly provide such give prompt notice of a Third Party Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying Party obligations under this Agreement, except to the extent the indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying Party, within thirty (30) days after notice of such Third Party Claim, or such shorter period as is reasonably required, fails to assume the defense of such Third Party Claim, or if the indemnifying Party at any time thereafter shall fail to diligently maintain and prosecute such defense, the Company shall have Buyer Indemnitee or the rightSeller Indemnitee, as the case may be, against whom such Third Party Claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall indemnifying Party) have the right to employ separate counsel in any undertake the defense, compromise or settlement of such Third Party Proceeding Claim on behalf of and for the account and risk, and at the expense, of the indemnifying Party, subject to reasonably participate in (but not control) the defence thereof, but right of the fees and expenses indemnifying Party to assume the defense of such counsel shall not be included as part of any Losses incurred by the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep Claim at any time prior to settlement, compromise or final determination thereof.
(b) Anything in this Section 5.4 to the other party reasonably apprised of all significant developments and contrary notwithstanding, the indemnifying Party shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying Party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying Party and the indemnified Party shall cooperate fully in all aspects of any investigation, delayed defense, pretrial activities, trial, compromise, settlement or conditioned; discharge of any claim in respect of which indemnity is sought, including, but not limited to, by providing the other Party with reasonable access to employees and officers (including as witnesses) and other information.
(d) Notwithstanding the foregoing, if an indemnified Party determines in good faith that there is a reasonable probability that a Third Party Claim may adversely affect it or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the case of a defence conducted indemnified Party may, by notice to the Company) indemnifying Party, assume the exclusive right to defend, compromise or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to settle such Third Party Proceeding; (II) contains no admission on Claim, but the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted indemnifying Party will not be bound by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution determination of any Third Party Proceeding and shall furnish Claim so defended for the purposes of this Agreement or cause to any compromise or settlement effected without its consent (which may not be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithunreasonably withheld).
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (MMC Energy, Inc.)
Third Party Indemnification. The obligations of the Sellers, the Purchaser (as applicable, the “INDEMNIFYING PARTY”) to indemnify Indemnified Parties under Section 11.1 or Section 11.2 hereof, respectively, with respect to Damages resulting from the assertion of liability by third parties (each, as the case may be, a “CLAIM”), shall be subject to the following terms and conditions:
11.4.1 Promptly after the assertion receipt by any an Indemnified Party of notice by a third party of any proceeding against any Glencore Indemnitee that results complaint or may result in the incurrence by such Glencore Indemnitee commencement of any Loss for action or proceeding with respect to which such Glencore Indemnitee would Indemnified Party may be entitled to indemnification pursuant receive payment from the other party for Damages, such Indemnified Party shall, within ten (10) days, notify the Sellers, the Purchaser as the appropriate Indemnifying Party, of such complaint or of the commencement of such action or proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement (a "Third Party Proceeding")with respect to such claim only if, such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except only to the extent that, such failure prejudices to notify the CompanyIndemnifying Party results in the forfeiture by the Indemnifying Party of material rights and defenses otherwise available to the Indemnifying Party with respect to such claim. ThereuponIn addition, the Company Indemnified Party shall have the right, upon written notice (the "Defence Notice") provide to the Glencore Indemnitee within 45 days after receipt Indemnifying Party as promptly as practicable thereafter such information and documentation as may be reasonably requested by the Company of notice Indemnifying Party to support and verify the claim asserted, so long as such disclosure would not violate the attorney-client privilege of the Third Indemnified Party. The Indemnifying Party Proceeding to conductmay at its option undertake the defense thereof by representatives of its own choosing; provided, that any Indemnified Party may, in any event, at its own expense, monitor and participate in, but not control, the defence defense of such claim. If the Third Indemnifying Party Proceeding in its own name orwithin thirty (30) days after notice of any such Claim fails to assume the defense of such Claim, if necessary, in the name of Indemnified Parties will (upon further notice to the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party; provided, however, that as long as the Indemnifying Party is reasonably contesting any claim in good faith, the Indemnified Parties shall not be included as part of pay or settle any Losses incurred by such claim.
11.4.2 Anything in this Section 11.4 to the Glencore Indemnitee unless: (i) contrary notwithstanding, the Company failed to give the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) which does not include as an unconditional term hereof the Company and delivery by the Glencore Indemnitee consentclaimant or plaintiff to the Indemnified Parties of a written release from all liability in respect of such action, suit or proceeding; or (b) for other than monetary damages without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithdelayed.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any indemnifying Person to indemnify any indemnified Person under this Article VII with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement Persons (a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any Persons against whom any Claim is asserted will give the indemnifying Person written notice of any such Glencore Indemnitee Claim (which notice shall include reasonably specified details regarding such Claim, an estimate of the Buyer Damages or Seller Damages, as applicable, and the specific basis under this Agreement for such Claim) promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying Person may at its option undertake the defense thereof by the third party. The failure to promptly provide such notice counsel of its own choosing (which shall not relieve the Company of any obligation to indemnify the Glencore Indemnitee, except be reasonably acceptable to the extent such failure prejudices the Company. ThereuponPerson being indemnified); provided, however, the Company shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee indemnified Person shall have the right to employ separate counsel participate in any Third Party Proceeding to reasonably participate in (but not control) matter through counsel of its own choosing at its own expense; provided further, however, that the defence thereof, but indemnifying Person shall pay the fees and expenses of such separate counsel shall not be included as part of any Losses incurred by for the Glencore Indemnitee unless: indemnified Person if (i) the Company failed indemnifying Person has agreed to give the Defence Notice; pay such fees and expenses or (ii) the employment named parties to any such action or proceeding (including any impleaded parties) include both the indemnified Person and the indemnifying Person, and such indemnified Person shall have been advised by counsel that the representation of both parties would be inappropriate due to actual or potential differing interests between them (in which case, if such indemnified Person notifies the indemnifying Person in writing that it elects to employ separate counsel at the expense of the Company has been specifically authorized indemnifying Person, the indemnifying Person shall not have the right to assume the defense of such Claim on behalf of such indemnified Person; it being understood, however, that the indemnifying Person shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified Person, which firm shall be designated in writing by such indemnified Person). Failure to give prompt notice of a Claim hereunder shall not affect the Companyindemnifying Person's obligations under this Article VII, except to the extent that the indemnifying Person is materially prejudiced by such failure to give prompt notice. The party conducting If the defence indemnifying Person elects to assume the defense of the Claim, the indemnified Person shall provide the indemnifying Person with reasonable access to its records and personnel relating to such Claim and shall otherwise cooperate with the indemnifying Person in the defense or settlement of the Claim. If the indemnifying Person, within thirty (30) days after notice of any Third Party Proceeding shall keep such Claim, fails to assume the other party reasonably apprised defense of all significant developments and shall not enter into any settlementsuch Claim, or thereafter fails to diligently defend such Claim, the indemnified Person against whom such Claim has been made will (upon further written notice to the indemnifying Person) have the right to undertake the defense, compromise or consent settlement of such Claim on behalf of and for the account and risk, and at the expense, of the indemnifying Person.
(b) Anything in this Section 7.4 to judgment with respect to such Third Party Proceeding unless: the contrary notwithstanding, (ai) the Company and indemnified Person shall not settle, compromise or pay a claim for which it is indemnified without the Glencore Indemnitee consentprior written consent of the indemnifying Person, which consent shall not be unreasonably withheld, delayed or conditioned; or and (bii) the settlement: (I) releases indemnifying Person shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the Glencore Indemnitee and its Affiliates (in the case entry of a defence conducted any judgment for other than monetary damages to be borne by the Company) or indemnifying Person, without the Company and its Affiliates (in prior written consent of the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party indemnified Person, which consent shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to not be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithunreasonably withheld.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of any Indemnifying Party to indemnify any Indemnified Party under this Article XIV with respect to Buyer Damages or Seller Damages, as the case may be, resulting from the assertion of liability by third parties (a “Claim”), will be subject to the following terms and conditions:
14.7.1 Any party against whom any third Claim is asserted (the “Indemnified Party”) will give the party required to provide indemnity hereunder the “Indemnifying Party”) written notice of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed Indemnifying Party may at its option undertake the defense thereof by the third partyrepresentatives of its own choosing. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore IndemniteeIndemnifying Party’s obligations under this Section, except to the extent that the Indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within thirty days after notice of any such Claim, fails to assume the defense of such Claim, the Company shall have the right, Indemnified Party against whom such claim has been made will (upon written further notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) undertake the defence thereofdefense, but the fees and expenses compromise or settlement of such counsel shall not be included as part claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any Losses incurred by time prior to settlement, compromise or final determination thereof.
14.7.2 Anything in this Section to the Glencore Indemnitee unless: contrary notwithstanding, (i) the Company failed to give Indemnified Party shall not settle a claim for which it is indemnified without the Defence Notice; or (ii) the employment of such counsel at the expense prior written consent of the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentIndemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned; or and (bii) the Indemnifying Party shall not enter into any settlement or compromise of any action, suit or proceeding or consent to the entry of any judgment for other than monetary damages to be borne by the Indemnifying Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
14.7.3 If the Indemnifying Party shall not assume the defense of any such claim by a third party, or litigation resulting therefrom, after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it deems appropriate.
14.7.4 If the Indemnifying Party shall not, within thirty (30) days after its receipt of the notice required by Section 14.7 hereof, advise the Indemnified Party that the Indemnifying Party denies the right of the Indemnified Party to indemnity in respect of the claim, then the amount of such claim shall be deemed to be finally determined between the Parties hereto. If the Indemnifying Party shall notify the Indemnified Party that it disputes any claim made by the Indemnified Party, then the Parties hereto shall endeavor to settle and compromise such claim, and if unable to agree on any settlement or compromise, such claim for indemnification shall be settled by appropriate litigation, and any liability established by reason of such settlement: (I) releases the Glencore Indemnitee and its Affiliates (, compromise or litigation shall be deemed to be finally determined. Any claim that is finally determined in the case of a defence conducted manner set forth above shall be paid promptly by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithIndemnifying Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Matthews International Corp)
Third Party Indemnification. (1) Promptly after the assertion by any third party of any proceeding Third Party Claim (a “Third Party Proceeding”) against any Glencore Indemnitee person entitled to indemnification under this Agreement (the “Indemnitee”) that results or may result in the incurrence by such Glencore Indemnitee of any Claim or Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding")Agreement, such Glencore Indemnitee shall will promptly notify the Company Party from whom such indemnification is or may be sought (the “Indemnitor”) of such Third Party Proceeding. Such notice shall will also specify with reasonable detail (to the extent the information is reasonably available) the factual basis for the Third Party Proceeding and Proceeding, the amount claimed by of the third partyThird Party Claim, or if such amount is not then determinable, a reasonable estimate of the likely amount of the Third Party Claim. The failure to promptly provide such notice shall will not relieve the Company Indemnitor of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the CompanyIndemnitor. Thereupon, the Company shall Indemnitor will have the right, upon written notice (the "“Defence Notice"”) to the Glencore Indemnitee within 45 30 days after receipt by the Company Indemnitor of notice of the Third Party Proceeding (or sooner if such Third Party Proceeding so requires) to conduct, at its own expense, the defence of against the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee provided that: (a) the Indemnitor acknowledges and agrees in the Defence Notice that as between the Indemnitor and the Indemnitee, it is liable to pay for all Losses arising from or relating to such Third Party Proceeding and (b) the Indemnitor provides to the Indemnitee adequate security (approved by the Indemnitee acting reasonably) from time to time in respect of such Losses. The Defence Notice will specify the counsel the Indemnitor will appoint to defend such Third Party Proceeding (the “Defence Counsel”), and the Indemnitee will have the right to approve the Defence Counsel, which approval will not be unreasonably withheld. Any Glencore Indemnitee shall will have the right to employ separate counsel in any Third Party Proceeding and/or to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall will not be included as part of any Losses incurred by the Glencore Indemnitee unless: unless (i) the Company Indemnitor failed to give the Defence Notice; , including the acknowledgement and agreement to be set out therein within the prescribed period, (ii) such Indemnitee has received an opinion of counsel, reasonably acceptable to the Indemnitor, to the effect that the interests of the Indemnitee and the Indemnitor with respect to the Third Party Proceeding are sufficiently adverse to prohibit the representation by the same counsel of both Parties under applicable ethical rules, or (iiiii) the employment of such counsel at the expense of the Company Indemnitor has been specifically authorized in writing by the CompanyIndemnitor. The party Party conducting the defence of any Third Party Proceeding shall will keep the other party reasonably Party apprised of all significant developments and shall will not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) unless the Company Indemnitor and the Glencore Indemnitee consent, which consent shall will not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after The obligations of the Seller and each of the Members to indemnify the Buyer Parties under Section 7.2 hereof with respect to Buyer Damages and the obligations of the Buyer to indemnify the Seller Parties under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed indemnifying party may at its option undertake the defense thereof by representatives of its own choosing and reasonably acceptable to the third indemnified party. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve affect the Company of any obligation to indemnify the Glencore Indemniteeindemnifying party's obligations under this Article VII, except to the extent the indemnifying party is precluded from defending the relevant Claim by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Party or the Seller Party, as the case may be, against whom such Claim has been made will (upon further notice to the indemnifying party) have the right to undertake the defense, compromise or settlement (subject to the terms of Section 7.4(c)) of such Claim on behalf of and for the account and risk, and at the expense, of the indemnifying party, subject to the right of the indemnifying party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b) So long as the indemnifying party has assumed the defense of any Claim in the manner set forth above, the indemnifying party shall have the exclusive right to contest, defend and litigate such Claim and, except as expressly provided in Section 7.4(c), shall have the exclusive right, upon written notice in its sole discretion, to settle any such claim, either before or after the initiation of litigation at such time and on such terms as the indemnifying party deems appropriate. If the indemnifying party elects not to assume the defense of any such Claim (which shall be without prejudice to its right at any time to assume subsequently such defense), the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conductindemnifying party will nonetheless be entitled, at its own expense, the defence of the Third Party Proceeding to participate in its own name or, if necessary, in the name of the Glencore Indemniteesuch defense. Any Glencore Indemnitee The indemnified party shall have the right to employ participate, with separate counsel (which counsel shall act in an advisory capacity only), in any Third Party Proceeding such contest, defense, litigation or settlement conducted by the indemnifying party. After written notice from the indemnifying party to reasonably participate in (but such indemnified party of the indemnifying party's election to assume the defense of such Claim, the indemnifying party will not control) the defence thereof, but the fees and be liable to such indemnified party for any expenses of the indemnified party's counsel that are incurred in connection with the defense thereof; provided, however, that the expense of such indemnified party's counsel shall not be included as part of any Losses incurred paid by the Glencore Indemnitee unless: indemnifying party if (i) the Company failed indemnifying party requested such separate counsel to give the Defence Notice; participate or (ii) in the employment reasonable opinion of counsel to the indemnified party, a significant conflict of interest exists between the indemnifying party, on the one hand, and the indemnified party, on the other hand, that would make such counsel at separate representation advisable.
(c) Without the expense prior written consent of the Company has been specifically authorized in writing by the Company. The indemnified party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consent, which consent shall not be unreasonably withheldwithheld or delayed), delayed the indemnifying party shall not admit any liability with respect to, or conditioned; settle, compromise or (b) discharge, any Claim or consent to the settlement: (I) releases the Glencore Indemnitee and its Affiliates (entry of any judgment with respect thereto, except in the case of a defence conducted any settlement that includes as an unconditional term thereof the delivery by the Company) claimant or plaintiff to the Company and its Affiliates (in the case indemnified party of a defence conducted by the Glencore Indemnitee) written release from all liabilities liability in respect of such Claim and obligations all Claims arising therefrom or relating thereto. In addition, whether or not the indemnifying party shall have assumed the defense of the Claim, the indemnified party shall not admit any liability with respect to, or settle, compromise or discharge, any Claim or consent to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights entry of any person; and judgment with respect thereto, without the prior written consent of the indemnifying party (III) provides as the claimant's which consent shall not be unreasonably withheld or plaintiff`s sole relief monetary damages (that are paid in full by the Companydelayed). Each Party shall cooperate, and cause their respective Affiliates the indemnifying party will not be subject to cooperateany liability for any such admission, settlement, compromise, discharge or consent to judgment made by an indemnified party without such prior written consent of the indemnifying party.
(d) The indemnifying party and the indemnified party shall cooperate fully in the defense or prosecution all aspects of any Third Party Proceeding investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought pursuant to this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and shall furnish or cause to be furnished such records, information officers (including as witnesses) and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithother information.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pdi Inc)
Third Party Indemnification. Promptly after The obligations of either party hereto to indemnify the other party under this Article IX with respect to Damages resulting from the assertion of liability by any third party of any proceeding against any Glencore Indemnitee that results or parties (each, as the case may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (be, a "Third Party ProceedingClaim"), will be subject to the following terms and conditions:
(a) The party seeking indemnification will give the party from whom indemnification is sought written notice of any such Glencore Indemnitee shall promptly notify Claim within a reasonable time (i.e., such time as will not prejudice the Company contest, defense, litigation, or settlement of the Claim) after learning of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Claim, and the amount claimed party from whom indemnification is sought may at its option undertake the defense thereof by the third party. The failure to promptly provide such notice shall not relieve the Company representatives of any obligation to indemnify the Glencore Indemnitee, except to the extent such failure prejudices the Company. Thereupon, the Company shall have the right, upon written notice its own choosing (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall party seeking indemnification will have the right to employ separate be represented by counsel of its own choice and at its own expense to participate in any Third Party Proceeding defense conducted by the other party; provided that the party seeking indemnification will be entitled to reasonably participate in (but not control) reimbursement therefor if the defence thereofother party loses its right to defend, but compromise and settle the fees and expenses Claim as provided below). If the party from whom indemnification is sought fails to assume the defense of any such Claim within 30 days after receiving notice of such counsel shall not be included as part of any Losses incurred by Claim, the Glencore Indemnitee unless: (i) party seeking indemnification will have the Company failed right to give undertake the Defence Notice; defense, compromise or (ii) the employment settlement of such counsel claim on behalf of and for the account and risk, and at the expense of the Company has been specifically authorized in writing (which shall be promptly reimbursed by the Company. The party conducting the defence of any Third Party Proceeding shall keep the other party upon request) of the party from whom indemnification is sought; provided, however, that as long as the party from whom indemnification is sought is reasonably apprised of all significant developments contesting any claim in good faith and in a timely fashion the party seeking indemnification shall not pay or settle any such claim.
(b) Anything in this Article IX to the contrary notwithstanding, the party from whom indemnification is sought shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the party seeking indemnification of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding or (aii) for other than monetary damages, without the Company and prior written consent of the Glencore Indemnitee consentparty seeking indemnification, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Business Products Inc)
Third Party Indemnification. Promptly after the assertion by any third party The obligations of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding Molfetta and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Trust to indemnify the Glencore IndemniteeBuyer Indemnitee under Section 7.2 and the obligations of the Buyer to indemnify the Seller Indemnitees under Section 7.3 hereof, in each case resulting from the assertion of liability by a third party (each, as the case may be, a “Claim”), shall be further subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted shall give the party (or the parties) required to provide indemnity hereunder written notice of such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense thereof with counsel chosen by it but reasonably satisfactory to the indemnified party. Failure to give prompt notice of a Claim hereunder shall not affect the indemnifying party’s obligations under this Section 7.4, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company Buyer Indemnitee or the Seller Indemnitee, as the case may be (each, an “Indemnitee”), against whom such Claim has been made shall have the right, upon written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) the defence thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by obligated, to undertake the Glencore Indemnitee unless: (i) the Company failed to give the Defence Notice; defense, compromise or (ii) the employment settlement of such counsel Claim on behalf and for the account and risk, and at the expense expense, of the Company has been specifically authorized indemnifying party.
(b) Anything in writing by this Section 7.4 to the Company. The contrary notwithstanding, the indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (A) which does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnitee of a written release from all liability in respect to of such Third Party Proceeding unless: action, suit or proceeding, or (aB) for other than monetary damages without the Company and prior written consent of the Glencore Indemnitee consentIndemnitee, which consent shall not be unreasonably withheld, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
Appears in 1 contract
Third Party Indemnification. Promptly after (a) If the assertion by Injured Party settles or compromises any third third-party of any proceeding against any Glencore Indemnitee that results claims, or may result in the incurrence by such Glencore Indemnitee of any Loss for initiates action which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis is for the Third purpose in whole or in part of causing a claim to be asserted, prior to giving a Notice of Claim to the Indemnifying Party, the Indemnifying Party Proceeding shall be released from its indemnity obligation.
(b) With respect to any action or any claim set forth in a Notice of Claim relating to a third-party claim, the Indemnifying Party may defend, in good faith and at its expense, any such claim or demand, and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation to indemnify the Glencore IndemniteeInjured Party, except to the extent such failure prejudices the Company. Thereuponat its expense, the Company shall have the right, upon written notice (but not the "Defence Notice") obligation, to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in (but not control) at its expense in the defence thereof, but the fees and expenses of such counsel shall not be included as part defense of any Losses incurred by the Glencore Indemnitee unless: such third-party claim so long as (i) the Company failed Indemnifying Party shall have acknowledged in writing to give the Defence Notice; or relevant Injured Party its obligation to indemnify such Injured Party as provided hereunder, (ii) the employment third-party claim involves primarily money damages and (iii) the Indemnifying Party conducts the defense of the third-party claim actively and diligently. So long as the Indemnifying Party is defending any such third-party claim, the Injured Party shall not settle or compromise such third-party claim without the consent of the Indemnifying Party. If such claim is settled by the Injured Party without the Indemnifying Party's consent, the Injured Party shall be deemed to have waived all rights hereunder for money damages arising out of such counsel at claim. The Indemnifying Party may settle or compromise such third-party claim without the expense consent of the Company has been specifically authorized Injured Party, if the settlement or compromise involves only the payment of monetary damages and included in writing by such settlement or compromise as an unconditional term thereof is the Companydelivery to Injured Party of a written release from all liability in respect of such third-party claim. The Otherwise, the Indemnifying Party may not settle or compromise such third-party conducting claim without the defence consent of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Proceeding unless: (a) the Company and the Glencore Indemnitee consentInjured Party, which consent shall not be unreasonably withheld, delayed . The Injured Party shall make available to the Indemnifying Party or conditioned; or (b) its representatives all records and other materials reasonably required for use in contesting any third-party claim. The Injured Party shall cooperate fully with the settlement: (I) releases the Glencore Indemnitee and its Affiliates (Indemnifying Party in the case defense of all such claims.
(c) If the Indemnifying Party fails to assume the defense of any such third-party claims, within thirty (30) days after receipt of a defence conducted by Notice of Claim (or such shorter period of time that the Company) Injured Party may be required to respond to any suit or governmental action), the Company Injured Party shall have the right to undertake the defense, settle or compromise any such third-party claim at the risk and its Affiliates (expense of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such claim at any time prior to settlement, compromise or final determination thereof. The failure of the Indemnifying Party to respond in writing to the case aforesaid notice of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations Injured Party with respect to such Third third-party claim within thirty (30) days after receipt thereof shall be deemed an election not to defend same. The Indemnifying Party Proceeding; (II) contains no admission on will not, however, be responsible for any Damages if and to the part of Glencore Indemnitee and its Affiliates (extent that they arise from action taken or omitted to be taken by the Injured Party in the case bad faith, fraudulently, negligently or as a result of a defence conducted breach of this Agreement by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewithInjured Party.
Appears in 1 contract
Third Party Indemnification. Promptly after the assertion by any third party The obligations of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party Proceeding"), such Glencore Indemnitee shall promptly notify the Company of such Third Party Proceeding. Such notice shall also specify with reasonable detail the factual basis for the Third Party Proceeding and the amount claimed by the third party. The failure to promptly provide such notice shall not relieve the Company of any obligation Seller to indemnify the Glencore IndemniteeBuyer Indemnitees under Section 7.2 with respect to Buyer Damages and the obligations of Buyer to indemnify the Seller Indemnitees under Section 7.3 with respect to Seller Damages, in either case resulting from the assertion of liability by third parties (each, as the case may be, a “Claim”), will be subject to the following terms and conditions:
(a) Any party against whom any Claim is asserted will give the indemnifying party written notice of any such Claim promptly after learning of such Claim, and the indemnifying party may, at its option, undertake the defense of such Claim by representatives of its own choosing. Failure to give prompt notice of a Claim under this Agreement shall not affect the indemnifying party obligations under this Article VII, except to the extent the indemnifying party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. Thereuponindemnifying party, within 30 days after notice of any such Claim, or such shorter period as is reasonably required, fails to assume the defense of such Claim, the Company shall Buyer Indemnitee or the Seller Indemnitee, as the case may be, against whom such Claim has been made will (upon further notice to the indemnifying party) have the rightright to undertake the defense, upon written notice (compromise or settlement of such Claim on behalf of and for the "Defence Notice") account and risk, and at the expense, of the indemnifying party, subject to the Glencore Indemnitee within 45 days after receipt by the Company of notice right of the Third Party Proceeding indemnifying party to conductassume the defense of such Claim at any time prior to settlement, at its own expensecompromise or final determination of such Claim. If the indemnifying party assumes such defense, the defence of Buyer Indemnitee or the Third Party Proceeding in its own name orSeller Indemnitee, if necessaryas the case may be, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall have the right to employ separate counsel in any Third Party Proceeding to reasonably participate in the defense thereof and to employ counsel, at its own expense (but which expense shall not control) constitute a Buyer Damage or Seller Damage, as applicable, unless the defence thereofBuyer Indemnitee or the Seller Indemnitee, but as the case may be, reasonably determines that the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, any interests of the Buyer Indemnitee or the Seller Indemnitee, as the case may be, and only to the extent that such expenses are reasonable), separate from the counsel employed by the Buyer Indemnitee or the Seller Indemnitee, it being understood, however, that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of such counsel shall not be included as part of any Losses incurred employed by the Glencore Buyer Indemnitee unless: or the Seller Indemnitee, as the case may be, for any period during which the indemnifying party has not assumed the defense thereof.
(ib) Anything in this Section 7.4 to the Company failed to give contrary notwithstanding, the Defence Notice; or (ii) the employment of such counsel at the expense of the Company has been specifically authorized in writing by the Company. The indemnifying party conducting the defence of any Third Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with (i) which does not include as an unconditional term of the delivery by the claimant or plaintiff to the Seller Indemnitee or the Buyer Indemnitee, as the case may be, of a written release from all liability in respect of such action, suit or proceeding or (ii) for other than monetary damages to such Third Party Proceeding unless: (a) be borne by the Company and indemnifying party, without the Glencore prior written consent of the Seller Indemnitee consentor the Buyer Indemnitee, as the case may be, which consent shall not be unreasonably withheld.
(c) The indemnifying party and the Seller Indemnitee or Buyer Indemnitee, delayed or conditioned; or (b) the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations with respect to as applicable, shall provide each other such Third Party Proceeding; (II) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Proceeding and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, cooperation as may be reasonably requested and at the expense of the indemnifying party in connection therewithall aspects of any investigation, defense, pretrial activities, trial, compromise, settlement or discharge of any claim in respect of which indemnity is sought under this Article VII, including, but not limited to, by providing the other party with reasonable access to employees and officers (including as witnesses) and other information.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Imperial Sugar Co /New/)
Third Party Indemnification. Promptly after The obligations of any indemnifying party under Sections 9.2 or 9.3 (the "Indemnifying Party") to indemnify any indemnified party (the "Indemnified Party") under this Article IX with respect to Buyer Damages or Sellers Damages, as the case may be, resulting from the assertion of Liability by any a third party of any proceeding against any Glencore Indemnitee that results or may result in the incurrence by such Glencore Indemnitee of any Loss for which such Glencore Indemnitee would be entitled to indemnification pursuant to this Agreement (a "Third Party ProceedingClaim"), shall be subject to the following terms and conditions:
(a) Any party against which any Claim is asserted shall give the party required to provide indemnity hereunder written notice of any such Glencore Indemnitee shall Claim promptly notify the Company after learning of such Third Claim, and the Indemnifying Party Proceeding. Such notice may at its option undertake the defense thereof by representatives of its own choosing, provided, that, before the Indemnifying Party assumes control of such defense it must first: enter into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party shall also specify be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all Damages relating to such Claim and unconditionally guarantees the payment of any Liability resulting therefrom; and furnish the Indemnified Party with reasonable detail evidence that the factual basis for the Third Indemnifying Party Proceeding is and the amount claimed by the third partywill be able to satisfy any such Liability. The failure Failure to promptly provide such give prompt notice of a Claim hereunder shall not relieve the Company of Indemnifying Party from any obligation to indemnify the Glencore Indemniteeunder this Article IX, except to the extent that the Indemnifying Party is materially prejudiced by such failure prejudices to give prompt notice. If the Company. ThereuponIndemnifying Party, within 15 days after receiving written notice of any such Claim, fails to adequately assume the defense of such Claim (by 120 either notifying the Indemnified Party thereof, failing to taking action within prescribed time periods in defense of such Claim or otherwise), the Company Indemnified Party against which such Claim has been made shall have the right, (upon further written notice (the "Defence Notice") to the Glencore Indemnitee within 45 days after receipt by the Company of notice of the Third Party Proceeding to conduct, at its own expense, the defence of the Third Party Proceeding in its own name or, if necessary, in the name of the Glencore Indemnitee. Any Glencore Indemnitee shall Indemnifying Party) have the right to employ separate counsel in any Third undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party, without obtaining the consent of the Indemnifying Party Proceeding to reasonably participate in (but not control) and the defence thereofIndemnifying Party shall be responsible for the costs, but the fees and expenses of such counsel to the Indemnified Party in connection therewith. The Indemnified Party shall not be included as part of reasonably cooperate with the Indemnifying Party in connection with any Losses incurred by Claim.
(b) Anything in Section 9.4(a) to the Glencore Indemnitee unless: contrary notwithstanding:
(i) if any Claim involves solely the Company failed to give the Defence Noticerecovery of a sum of money (and does not seek injunctive or other equitable relief); or (ii) involves the employment recovery of any combination of money, on the one hand, and seeks injunctive or other equitable relief, on the other, or the Indemnified Party reasonably believes that an adverse determination of such counsel at Claim could be detrimental to or injure the expense Indemnified Party's reputation or future business prospects and notifies the Indemnified Party of such belief; the Company has been specifically authorized in writing by the Company. The party conducting the defence of any Third Indemnifying Party Proceeding shall keep the other party reasonably apprised of all significant developments and shall not enter into any settlementsettlement or compromise of any action, compromise suit or proceeding or consent to the entry of any judgment with respect to such Third Party Proceeding unless: (a) without the Company and prior written consent of the Glencore Indemnitee consentIndemnified Party, which consent shall not be unreasonably withheld, delayed withheld or conditioned; delayed. In the event the Indemnifying Party receives a bona fide settlement proposal or (b) compromise which includes provisions that would bind the settlement: (I) releases the Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) from all liabilities and obligations Indemnified Party other than with respect to the payment of monetary damages, or which the Indemnified Party reasonably believes could be detrimental to or injure its reputation or future business prospects, and in either such Third case which the Indemnifying Party, in good faith reasonably believes would not have an adverse effect on the Indemnified Party, if such settlement or compromise is acceptable to the Indemnifying Party Proceedingbut the non-monetary portion of such compromise or settlement is not acceptable to the Indemnified Party (acting reasonably and without delay), the Indemnified Party must either accept such settlement or compromise or continue the defense of any such matter for its own account, and the costs and expense of such defense from and after the date that the Indemnifying Party notified the Indemnified Party of the terms of such settlement or compromise as well as any Losses and Damages in excess of the amount which the Indemnifying Party would have borne had the settlement proposed by the Indemnifying Party been accepted, shall be for the account of the Indemnified Party; provided that Indemnifying Party shall pay to 121 the Indemnified Party the full amount of such proposed monetary settlement at the time the Indemnified Party assumes such defense;
(ii) if any Claim solely seeks injunctive or other equitable relief, the Indemnifying Party shall not be entitled to have, and the Indemnified Party shall, subject to the Indemnifying Party's rights pursuant to Section 9.4(a), have the sole right to undertake the defense thereof by representatives of its own choosing by notifying the Indemnifying Party of such election together with its initial notice of the Claim pursuant to Section 9.4;
(iii) No Indemnifying Party shall settle or compromise or consent to the entry of any judgment with respect to any Claim unless such settlement, compromise or consent includes an unconditional written release of the Indemnified Party from all Liability arising out of such Claim.
(c) Notwithstanding Section 9.4(b) above; (IIi) contains no admission on the part of Glencore Indemnitee and its Affiliates (in the case of a defence conducted by the Company) or the Company and its Affiliates (in the case of a defence conducted by the Glencore Indemnitee) that it violated any law or infringed the rights of any person; and (III) provides as the claimant's or plaintiff`s sole relief monetary damages (that are paid in full by the Company). Each Indemnified Party shall cooperate, and cause their respective Affiliates will be entitled to cooperate, participate in the defense or prosecution of any Third Claim and employ counsel of its choice for such purpose at its own expense, beginning five days subsequent to the date upon which the Indemnified Party Proceeding notified the Indemnifying Party of the existence of such Claim (ii) the Indemnifying Party will not be entitled to assume control of the defense of such Claim and shall furnish enter into a joint defense agreement with the Indemnified Party and will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, if the Indemnified Party reasonably believes that there exists or cause to be furnished could arise a conflict of interest which, under applicable principles of legal ethics, could prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such records, information and testimonyClaim, and attend (iii) the Indemnifying Party will not be entitled to assume control of the defense of such conferencesClaim, discovery proceedingsand will pay the reasonable fees and expenses of legal counsel retained by the Indemnified Party, hearings, trials if a court of competent jurisdiction rules that the Indemnifying Party has failed or appeals, as may be reasonably requested in connection therewithis failing to prosecute or defend vigorously such Claim.
Appears in 1 contract
Sources: Purchase Agreement (Revlon Inc /De/)