Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information. (ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing. (iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party. (iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Thor Industries Inc), Stock Purchase Agreement (Thor Industries Inc)
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party Person (including a Governmental Body) against such Person him, her or it (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim thereof (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 thirty (30) days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement herein (including the Cap). .
(iii) Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnified Party shall have the right to participate in the defense of such Third-Party Proceeding with counsel selected by it subject to the Indemnifying Party's right to control the defense thereof, however the Indemnifying Party will have no liability for any fees of such legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (xA) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (yB) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Indemnified Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying PartyParty (which will not be unreasonably withheld, delayed or conditioned); provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement hereunder (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingwriting (which consent will not be unreasonably withheld, delayed or conditioned).
(iiiiv) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not requiredindemnify. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(ivv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party Parties and the Other Party’s Parties’ Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Novation Companies, Inc.)
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(iia) The Indemnifying Party will be entitled to participate in the defense of any Third-Third Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, Claim and may elect to assume the defense of such Third-the Third Party Proceeding Claim by delivering written notice of the election within ten (with counsel 10) Business Days after receiving notice of its choice that is reasonably satisfactory the Third Party Claim as provided in Section 10.5 provided that:
(i) Indemnifying Party irrevocably confirms, based on all of the facts known to the Indemnified Indemnifying Party) by notifying , its obligation to indemnify the Indemnified Party of its election with respect to do so within 30 days of receipt of notice of such Proceeding third-party claim pursuant to, and on the terms and subject to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in in, this Agreement ARTICLE 10;
(including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (xii) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying PartyClaim (A) seeks and can only result in money damages; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.and
(iii) The assumption of Indemnifying Party conducts the defense of any Third-the applicable Third Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs Claim actively and expenses if indemnification with respect to such Proceeding was not required. diligently.
(b) If an Indemnifying Party timely elects to assume the defense of a Third-Third Party Proceeding but subsequently determines in good faith that indemnification Claim:
(i) the Indemnifying Party will not, so long as it conducts the defense, be liable to the Indemnified Party under this ARTICLE 10 for any fees of other counsel or any other expenses with respect to such Proceeding is not required under this Article 8the defense of the Third Party Claim, such in each case subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim after notice of assumption of defense of the same by the Indemnifying Party; except to the extent that conflicts of interest or the rules of professional conduct prevent the counsel for the Indemnifying Party from adequately representing the Indemnified Party or necessitates that the Indemnified Party obtain separate counsel, in which case the cost of such counsel for the Indemnified Party will be included as a Loss; and
(ii) no compromise or settlement of the Third Party Claim may elect to transfer be effected by the defense back to Indemnifying Party without the Indemnified Party’s Consent (such consent not to be unreasonably withheld, but solely to delayed or conditioned) unless the extent such transfer can be accomplished in compromise or settlement includes a manner that would not materially and irreparably prejudice the rights grant by each claimant or plaintiff of a full, unconditional release of the Indemnified PartyParty from all Liabilities arising from or relating to the claim and the sole relief provided for is monetary damages that are paid in full by the Indemnifying Party (or its Affiliates).
(ivc) Except If an Indemnifying Party does not timely elect to assume the extent it would cause a waiver defense of a privilegeThird Party Claim, each then the Indemnifying Party will make available to be bound by any determination made in the Other Proceeding or any compromise or settlement effected by the Indemnified Party and except that the Other Indemnified Person shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s Representatives all of its Books and Records andConsent (which consent shall not be unreasonably withheld, delayed or conditioned).
(d) The Indemnified Party or the Indemnifying Party, as applicablethe case may be, employees relating that is controlling the defense of a Third Party Claim will keep the other reasonably informed of the Proceeding at all stages thereof, whether or not the other is represented by counsel. Each party agrees to a Third-Party Proceeding render to each other such assistance as may reasonably be reasonably requested by the Other Party, and each Party will reasonably cooperate in order to insure ensure the proper and adequate defense of a Third Party Claim. Each party will cooperate with the other and provide such Third-assistance, at the sole cost and expense of the Indemnifying Party, as such other party may reasonably request in connection with the defense of the Third Party ProceedingClaim, including providing such other party with reasonable access to and reasonable use of all relevant corporate records and making its officers and employees reasonably available for depositions, pretrial discovery and as witnesses at trial, if required. In requesting any such cooperation, the party requesting such assistance will have due regard for, and attempt to not be disruptive of, the business and day to day operations of the other party and will follow all reasonable requests of the other party regarding any documents or instruments which such party believes should be given confidential treatment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Zep Inc.)
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice Indemnitors shall indemnify Indemnitee ----------------------- to the Indemnifying Party full extent permitted now or hereafter by applicable law, as from time to time amended, subject to the exceptions provided in Section 8 of this Agreement. Without limiting the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying foregoing but subject to the provisions of this Agreement upon which indemnification for Agreement, Indemnitors shall indemnify Indemnitee if Indemnitee is or was a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the claim is based. The failure to timely notify the Indemnifying Party right of Indemnitors) by reason of Indemnitee's past, present or provide the information described above will not relieve the Indemnifying Party future service as a director or executive officer of any liability that Indemnitor, or, at any such Indemnitor's request, of another enterprise or entity in which any Indemnitor had, directly or indirectly, an interest at the Indemnifying Party may have to an Indemnified Party except to the extent that the defense time of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement andservice, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement against expenses (including the Capattorney's fees). Following an assumption of defense of a Third-Party Proceeding , judgments, fines and amounts paid in settlement (if such settlement is approved in advance by an Indemnifying Party under this AgreementIndemnitors, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with investigating, delayed preparing for, defending or conditioned), unless: settling such action or proceeding. Indemnitors hereby agree to indemnify Indemnitee's spouse (x) whether by statute or at common law and without regard to the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability location of the Indemnified Parties with respect governing jurisdiction) and children (including by way of adoption) as express third-party beneficiaries hereunder to the claim(s) asserted against same extent and subject to the Indemnified Parties in the same limitations applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent to Indemnitee hereunder for claims arising out of the Indemnifying Party; providedstatus of such person as a spouse or child of Indemnitee, however, that the Indemnified Party will have the right including claims seeking damages from marital property (including community property) or property held by Indemnitee and such spouse or property transferred to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity spouse or child. The indemnification provided under this Agreement with respect may not be amended, modified or limited in a manner adverse to such Proceeding or the rights of Indemnitee without the consent of Indemnitee, and Indemnitee shall be deemed to be serving in his capacity as an officer and/or director of any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, Indemnitor in reliance on the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingAgreement.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a any Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”)it, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is basedProceeding. The failure to timely promptly notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party it may have to an Indemnified Party Party, except to the extent that the defense of such Third-Party Proceeding action was actually irreparably and materially prejudiced by the Indemnified Party’s failure to provide timely notice or such informationprompt notice.
(ii) The If any Proceeding is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in any Third-Party such Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that it wishes (unless the Indemnifying Party wishes, is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate) to assume the defense of such Third-Party Proceeding (and can demonstrate its financial capability to assume and diligently pursue such defense, it may do so with counsel of its choice that is reasonably satisfactory to the Indemnified Party) . Following a proper assumption of defense by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoingan Indemnifying Party, as long as the Indemnifying Party diligently conducts such defense it will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability liable for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If an the Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying such claims may be effected by it the Indemnifying Party without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: unless (x) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made by or against the Indemnified Party, and (y) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement. If notice is given to an Indemnifying Party of the commencement of any Proceeding and the Indemnifying Party does not within ten days properly exercise its election to assume the defense of such Proceeding, (A) the Indemnifying Party will be bound by any determination made in such Proceeding; and (B) no compromise or settlement of such claims may be effected by the Indemnified Party without the Indemnifying Party’s consent unless (x) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made by or against the Indemnifying Party, and (y) such the sole relief provided is monetary damages that are paid in full by the Indemnified Party concurrently with the compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceedingsettlement; provided that notwithstanding anything set forth herein, the Indemnified Party will not settle shall retain its right to seek indemnification hereunder for any Adverse Consequences associated with the compromise or settlement, and the Indemnifying Party shall be entitled to contest the reasonableness of any such compromise or settlement.
(iii) Notwithstanding the foregoing, if an Indemnified Party determines in good faith that there is a reasonable probability that a Proceeding without may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the prior written consent of Indemnified Party may, by notice to the Indemnifying Party; provided, however, that retain the Indemnified Party will have the exclusive right to defend, compromise or settle any such Proceeding without the prior written consent of Proceeding, but the Indemnifying Party if will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which consent will not be unreasonably withheld).
(iv) Each Party will make available to the other Parties and each other Parties’ Representatives all of its or his Books and Records relating to a third-party Proceeding and each Party will render to the other Party’s assistance as may be reasonably required in order to ensure the proper and adequate defense of such third-party Proceeding.
(v) Each Party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought by a Person not a Party to this Agreement against any Indemnified Party first waives for purposes of any right to indemnity claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingmatters alleged therein.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paragon Technologies Inc)
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(iia) The Indemnifying Party will be entitled to participate in the defense of any Third-Third Party Proceeding with respect to which indemnification has been or will be sought under this Agreement Claim and, subject to the extent that the Indemnifying Party wishesSection 11.7(d), may elect to assume the defense of such Third-and control resolution of the Third Party Proceeding (Claim with counsel of its choice that is reasonably satisfactory to the Indemnified Party) Party by notifying the Indemnified Party of its election to do so within 30 days of receipt of delivering written notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation election within 10 Business Days after receiving notice of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement Claim as provided in writingSection 11.5.
(iiib) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Third Party Claim:
(i) the Indemnifying Party will not, so long as it conducts the defense in a commercially reasonable manner, be liable to the Indemnified Party under this ARTICLE 11 for any fees of other counsel or any other expenses with respect to the defense of the Third Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of the Third Party Claim;
(ii) the assumption will conclusively establish for purposes of this Agreement that the claims asserted in the Third Party Claim are within the scope of and subject to indemnification; and
(iii) no compromise or settlement of the Third Party Claim may be effected by the Indemnifying Party without the Indemnified Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed) unless (1) the compromise or settlement includes a grant by each claimant or plaintiff of a full, unconditional release of the Indemnified Party from all Liabilities arising from or relating to the claim; (2) the sole relief provided for is monetary damages that are paid in full by the Indemnifying Party (or its Affiliates); and (3) the terms of the compromise or settlement are strictly confidential among the parties thereto, and any copies required to be filed with any Authority are filed under seal or similar measures are taken to ensure confidential treatment thereof.
(c) If an Indemnifying Party does not timely elect to assume the defense of a Third Party Claim, then the Indemnifying Party will be bound by any determination made in the Proceeding but subsequently or any compromise or settlement effected by the Indemnified Party in good faith.
(d) Notwithstanding Section 11.7(a), an Indemnified Party may retain or assume the exclusive right to defend, settle or compromise a Third Party Claim if the Indemnified Party reasonably determines in good faith that (i) the claim relates to or arises in connection with any criminal or quasi-criminal matter; (ii) the claim seeks or is likely to seek an injunction or other equitable relief against the Indemnified Party; (iii) there is or may be a conflict of interest (aside from the parties’ respective rights and obligations hereunder) between the Indemnifying Party and the Indemnified Party; (iv) the Indemnifying Party is not defending the claim in a commercially reasonable manner; or (v) the Indemnifying Party does not, or is not likely to, have the financial capacity to defend the claim and provide indemnification with respect to such Proceeding is not required under this Article 8the claim. In any case where an Indemnified Party asserts its rights hereunder, such no compromise or settlement of the Third Party Claim may be effected by the Indemnified Party without the Indemnifying Party’s consent unless the compromise or settlement includes a grant by each claimant or plaintiff of a full, unconditional release of the Indemnifying Party may elect to transfer the defense back from all Liabilities arising from or relating to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Partyclaim.
(ive) Except to The Indemnified Party or the extent it would cause a waiver Indemnifying Party, as the case may be, that is controlling the defense of a privilegeThird Party Claim will keep the other reasonably informed of the Proceeding at all stages thereof, whether or not the other is represented by counsel. Each party agrees to render to each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding other such assistance as may reasonably be reasonably requested by the Other Party, and each Party will reasonably cooperate in order to insure ensure the proper and adequate defense of a Third Party Claim. Each party will cooperate with the other and provide such Third-assistance, at the sole cost and expense of the Indemnifying Party, as such other party may reasonably request in connection with the defense of the Third Party ProceedingClaim, including providing such other party with reasonable access to and reasonable use of all relevant corporate records and making its officers and employees reasonably available for depositions, pretrial discovery and as witnesses at trial, if required. In requesting any such cooperation, the party requesting such assistance will have due regard for, and attempt to not be disruptive of, the business and day to day operations of the other party and will follow all reasonable requests of the other party regarding any documents or instruments which such party believes should be given confidential treatment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Toro Co)
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 5 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”)it, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 85, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is basedProceeding. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party it may have to an Indemnified Party Party, except to the extent that the defense of such Third-Party Proceeding action was actually materially and irreparably prejudiced by the Indemnified Party’s failure to provide timely notice or such informationnotice.
(ii) The If any Proceeding is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in any Third-Party such Proceeding with respect and, subject to which indemnification has been or will be sought under this Agreement andsubsection (a)(iii) below, to the extent that it wishes and can demonstrate its financial capability to assume and diligently pursue such defense and the Indemnifying Party wishesresolution thereof, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) . Following a proper assumption of defense by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoingan Indemnifying Party, as long as the Indemnifying Party diligently conducts such defense it will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability liable for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If an the Indemnifying Party assumes the defense of a Third-Party Proceeding, (A) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification hereunder and (B) no compromise or settlement of the underlying such claims may be effected by it the Indemnifying Party without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: unless (x) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made by or against the Indemnified Party and (y) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If written notice is given to an Indemnifying Party assumes of the commencement of any Proceeding and the Indemnifying Party does not within twenty days, or such lesser period of time as required to meet any deadline for a response, properly exercise its election to assume the defense of a Third-Party such Proceeding, the Indemnified Indemnifying Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle be bound by any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to determination made in such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, compromise or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding thereof reasonably effected by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of Notwithstanding the defense of any Third-foregoing, (A) if an Indemnified Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement or (B) if an Indemnified Party in good faith concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnifying Party, the Indemnified Party may, by written notice to the Indemnifying Party, retain the exclusive right to defend, compromise or settle such Proceeding, but the Indemnifying Party will have the opportunity to participate in such Proceeding and will reserve the right to contest indemnification with respect to any determination, compromise or settlement of such Proceeding is effected without its consent (which consent will not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Partyunreasonably withheld).
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party other Parties and the Other Party’s other Parties’ Representatives all of his, her or its Books and Records and, as applicable, employees relating to a Thirdthird-Party Proceeding as may be reasonably requested by the Other Partyparty Proceeding, and each Party will render to the other Parties assistance as may be reasonably cooperate required in order to insure the proper and adequate defense of such Thirdthird-Party party Proceeding.
(v) Each Party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought by a Person not a Party to this Agreement against any Indemnified Party for purposes of litigating a claim that an Indemnified Party may have under this Agreement against an Indemnifying Party with respect to such Proceeding or the matters alleged therein (including its right to indemnification).
Appears in 1 contract
Sources: Stock Purchase Agreement (Noble International, Ltd.)
Third Party Proceedings. (i1) Promptly after receipt Upon becoming aware of a Proceeding or a possible Proceeding by a Person entitled to be indemnified under this Article 8 third party (a “Third Party Proceeding”) against a Purchaser Indemnified Party or a Seller Indemnified Party (as applicable, an “Indemnified Party”) in respect of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), which such Indemnified Party willmay seek indemnity from Sellers or Purchasers (as applicable, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8Section 10, give prompt written notice to such Indemnified Party shall promptly provide the Indemnifying Party of the commencement with written notice of such Third-Party Proceeding for which indemnification is sought: (A) claim or possible claim, describing in reasonable detail the nature of facts and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis circumstances on which such amount was calculated; and (C) identifying claim is based, the provisions of this Agreement upon pursuant to which indemnification is being sought and an estimate of the Indemnified Party’s Losses for the claim which indemnification is basedbeing sought (if ascertainable). The failure to timely notify the Indemnifying Party or promptly provide the information described above will such notice shall not relieve the Indemnifying Party result in a waiver of any liability that the Indemnifying Party may have right to an Indemnified Party indemnification hereunder except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, is actually prejudiced by such failure. The Indemnifying Party shall have thirty (30) days after receipt of such notice to provide written notice to the Indemnified Party that it desires to assume the defense of such Third-Party Proceeding (with conduct and control, through counsel of its choice that is reasonably satisfactory acceptable to the Indemnified Party) by notifying , and at the expense of the Indemnifying Party, of the settlement or defense thereof, provided that such notice contains confirmation that the Indemnifying Party has an obligation to indemnify the Indemnified Party of its election to do so within 30 days of receipt of notice for the Losses actually incurred as a result of such Third Party Proceeding pursuant which the Indemnifying Party is assuming the right to conduct and control the defense thereof (subject to the limitations and other terms and conditions of this Section 8.5(a)(i10). Notwithstanding the foregoing, the Indemnifying Party will shall not be permitted entitled to assume or control the settlement or defense of a Third-Third Party Proceeding Proceeding, and the reasonable fees and expenses of the Indemnified Party’s counsel in such proceeding shall be borne by the Indemnifying Party, if: (Ai) based on the facts then known, the Losses associated with such Third Party Proceeding are reasonably expected to exceed two hundred percent (200%) of the maximum amount for which the Indemnifying Party could then be liable pursuant to this Section 10; (ii) such Thirdclaim seeks non-monetary, equitable, or injunctive relief or alleges any violation of criminal Law; (iii) the Third Party Proceeding arises in connection is brought by a material customer of or Governmental Authority with any criminal proceeding, action, indictment, criminal allegation regulatory authority over the Indemnified Party; or criminal investigation of (iv) an Indemnifying Party is also a party and the Indemnified Party or its Affiliates; (B) determines in good faith based on the Indemnified Party is advised in writing by outside advice of counsel chosen by it that there are may be one or more legal or equitable defenses available to the Indemnified Party that are different or in addition to those available to the Indemnifying Party cannot assert on behalf and that could result in a conflict of interest between the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, and the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by Party.
(2) If the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will shall reasonably cooperate with the Indemnifying Party in connection therewith, including by furnishing books and records, personnel, and witnesses, as appropriate for any defense of such claim, and the Indemnifying Party shall not settle be authorized to consent to any settlement of, or entry of any judgment arising from, any such Proceeding Third Party Proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). If such settlement or judgment involves solely monetary amounts to be satisfied by the Indemnifying Party and (i) does not involve any injunctive relief or finding or admission of any violation of Law or any admission of wrongdoing by any Indemnified Party, or (ii) fully and finally releases the Indemnified Party completely in connection with such Third Party Proceeding, then the Indemnifying Party shall give written notice of such intended settlement or entry of judgment to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Proceeding and in such event, the maximum Liability of the Indemnifying Party as to such Third Party Proceeding shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Proceeding, the Indemnifying Party may settle the Third Party Proceeding upon the terms set forth in its notice to the Indemnified Party; provided, howeverthat the Indemnifying Party shall not enter into any settlement pursuant to its rights under Section 10.3(a)(2) to the extent such settlement is, that in the good faith opinion of the Indemnified Party, prejudicial to the Indemnified Party’s interests.
(3) If the Indemnifying Party does not assume the defense (whether by election, or because it is not entitled to do so), or withdraws from the defense of a Third Party Proceeding, then the Indemnified Party will shall have the right to defend (at the Indemnifying Party’s cost), contest, settle, and compromise the Third Party Proceeding but shall not thereby waive any right to indemnity therefor pursuant to this Agreement, and shall cooperate in good faith and keep the Indemnifying Party reasonably informed of material developments with respect to such Third Party Proceeding. Notwithstanding the foregoing, the Indemnified Party shall in no event settle (or consent to the settlement of) any such Third Party Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will which consent shall not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingunreasonably withheld, conditioned or delayed).
(iii4) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back Notwithstanding anything to the Indemnified Partycontrary contained in this Agreement, but solely to the extent such transfer can procedures for all Tax Contests shall be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(ivgoverned exclusively by Section 8.8(f) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives procedures for all of its Books and Records indemnification claims pursuant to Section 4.9(c) shall be governed exclusively by Section 4.9(c) (and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and in each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceedingcase not this Section 10.3(a)).
Appears in 1 contract
Sources: Membership Interest, Share and Asset Purchase Agreement (Babcock & Wilcox Enterprises, Inc.)
Third Party Proceedings. (i) Promptly Reasonably promptly after receipt by a Person entitled to be indemnified under this Article 8 Agreement (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person him, her or it (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8Agreement, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing . Any such written notice shall set forth in reasonable detail the nature of facts giving rise to such Third-Party Proceeding (to the extent known by the Indemnified Party) and the underlying factual and legal basis for the claim; (B) stating the amount or estimated amount (to the extent reasonably estimable) of the claim (if then quantifiable) and describing in reasonable detail the basis on which Losses arising out of such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is basedThird-Party Proceeding. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability obligation that the Indemnifying Party may have to an Indemnified Party hereunder except to the extent that the defense of such Third-Party Proceeding was actually and materially prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 thirty (30) days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i)the prior subsection; provided that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its obligation to indemnify the Indemnified Party hereunder in respect of Losses suffered by the Indemnified Party in connection with such Third-Party Proceedings if the same is adversely determined. Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; or (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, (x) no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not to be unreasonably withheld, delayed conditioned or conditioned), unless: (xdelayed) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) the Indemnified Party will not settle such compromise or settlement provides for a complete release from liability Proceeding without the prior written consent of the Indemnified Parties with respect Indemnifying Party (not to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceedingbe unreasonably withheld, conditioned or delayed). If an Indemnifying Indemnified Party assumes controls the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect not to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingunreasonably withheld, conditioned or delayed).
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other each other Party and the Other each other Party’s Representatives all of its Books books and Records records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other each other Party, and each Party will reasonably cooperate to insure ensure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly Except for Proceedings related to Taxes (which are subject to Section 4.9(h)), promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a Proceeding against such Indemnified Person by any Person other than a third party (Party, including a Governmental Body) against such Person Body (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim thereof (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such informationnotice.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i)Proceeding. Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses)) or there is a material conflict of interest; or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 7 as a result of the limitations set forth in this Agreement herein (including the Cap); or (D) an injunction or non-monetary or other equitable relief is sought against the Indemnified Party in such Third Party Proceeding (unless such relief sought is not material to such Third Party Proceeding and would not, if granted, materially affect Buyer, any Company or any Affiliate of Buyer, or any of their respective assets, properties operations or businesses. Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the 63 Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) claims asserted against the Indemnified Parties in the applicable Third Third-Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying PartyParty (which will not be unreasonably withheld, delayed or conditioned); provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreementmatter. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) hereunder unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not requiredindemnify. If an An Indemnifying Party timely elects may elect to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8at any time during its pendency, such even if initially the Indemnifying Party may did not elect to transfer assume such defense, so long as the assumption of such defense back to the Indemnified Party, but solely to the extent at such transfer can be accomplished in a manner that later time would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilegeprivilege or in the event that litigation between the Parties has commenced or is imminent or expressly threatened, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Partyrequested, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by The Company shall indemnify Indemnitee if Indemnitee is or was a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification or is threatened to be made against a Party party to any threatened, pending or completed direct action or proceeding (an “Indemnifying Party”) under this Article 8which, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing as used in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, shall include any alternative dispute resolution action proceeding) (other than an action in the Indemnifying Party will have no liability for right of the Company) by reason of the fact that Indemnitee is holding or held a Qualified Position, or by reason of any fees action or inaction on the part of legal counsel or other Indemnitee while holding a Qualified Position, against expenses subsequently incurred (including attorneys’ fees), judgments and amounts paid in settlement (if such settlement is approved in advance by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party ProceedingCompany, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will approval shall not be unreasonably withheld, delayed conditioned or conditioned)delayed) actually and reasonably incurred by Indemnitee in connection with such action or proceeding. The entitlement to the indemnification contemplated in this Section 1(B) shall not apply, unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for and any prepaid expenses shall be reimbursed by the Indemnifying Party concurrently with Indemnitee to the compromise Company or settlement; the relevant Subsidiary, if:
(i) a competent court, arbitration court, or governmental or administrative authority, holds in a final or enforceable judgment, decision or ruling, the Indemnitee to be liable and (y) such compromise concludes that the relevant actions or settlement provides for a complete release from liability omissions giving rise to covered action or proceeding constitute an intentional or grossly negligent breach of the Indemnified Parties with respect to the claim(sIndemnitee’s statutory duties under applicable law;
(ii) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of absent a Third-Party Proceedingfinal or enforceable judgment, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provideddecision or ruling by a competent court, howeverarbitration court, or governmental or administrative authority, it is prima facie apparent, that the Indemnified Party will have relevant actions or omissions giving rise to the right to settle any such Proceeding without the prior written consent covered action or proceedings constitute an intentional or grossly negligence breach of the Indemnifying Party if Indemnitee’s statutory duties under applicable law. A majority vote of the Indemnified Party first waives board of directors of the Company who are not and were not party to the covered action or proceeding in respect of which indemnification is sought by the Indemnitee (the “Disinterested Directors”) shall determine whether it is prima facie apparent that the relevant actions or omissions giving rise to the covered action or proceeding, constitute an intentional or grossly negligent breach of the statutory duties of the Indemnitee. If there are not at least three (3) Disinterested Directors, the matter shall be referred to a partner of a reputed Swiss law firm (appointed by the Company) who has not been involved in any right to indemnity under this Agreement with respect to in such Proceeding matter and who has not advised the Company or any related claim under this Agreementparty involved in the proceedings. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.INDEMNIFICATION AGREEMENT
Appears in 1 contract
Third Party Proceedings. (i) Promptly after Reasonably promptly, but in no event more than ten (10) days, following receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person him, her or it (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing . Any such written notice shall set forth in reasonable detail the nature of facts giving rise to such Third-Party Proceeding (to the extent known by the Indemnified Party) and the underlying factual and legal basis for the claim; (B) stating the amount or estimated amount (to the extent reasonably estimable) of Losses arising out of such Third-Party Proceeding, any other remedy sought thereunder and, to the claim extent known by the Indemnified Party, any other material details pertaining thereto (if then quantifiable) and describing in reasonable detail a “Claim Notice”). Subject to Section 8.1, the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability obligation that the Indemnifying Party may have to an Indemnified Party hereunder except to the extent that the defense of such Third-Party Proceeding was actually and materially prejudiced by the Indemnified Party’s failure to provide timely notice or such information. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Person relating to the Third-Party Claim.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 thirty (30) days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i8.6(a)(i); provided that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its obligation to indemnify the Indemnified Party hereunder in respect of Losses suffered by the Indemnified Party in connection with such Third-Party Proceedings if the same is adversely determined. Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences Losses arising or resulting from such Third-Party Proceeding will exceed the Indemnity Escrow Funds then remaining amount in the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap)Indemnity Escrow Account. Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not to be unreasonably withheld, delayed conditioned or conditioneddelayed), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this AgreementProceeding. Without impairing If an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume controls the defense of a Third-Party Proceeding, the terms of any settlement of Indemnifying Party may participate in such Proceeding by with counsel of its own choice and the Indemnified Party (including will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingProceeding.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the each Other Party and the each Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the each Other Party, and each Party will reasonably cooperate to insure ensure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”)it, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification specifying with reasonable particularity (to the extent that such information is sought: (Aavailable) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating indemnity claim and the estimated amount of the indemnity claim (if then quantifiable) and describing known. Any delay in reasonable detail the basis on which providing such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure notice to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party it may have to an Indemnified Party Party, except to the extent that the defense of such Third-Party Proceeding action was actually materially and irreparably prejudiced by the Indemnified Party’s failure to provide timely notice or such informationdelay.
(ii) The If any Proceeding is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in any Third-Party such Proceeding with respect and, subject to which indemnification has been or will be sought under this Agreement andsubsection (a)(iii) below, to the extent that it wishes and can demonstrate its financial capability to assume and diligently pursue such defense and the Indemnifying Party wishesresolution thereof, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) . Following a proper assumption of defense by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoingan Indemnifying Party, as long as the Indemnifying Party diligently conducts such defense, it will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability liable for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs incurred in investigation and providing requested assistance. If an the Indemnifying Party assumes the defense of a Third-Party Proceeding, (A) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification hereunder and (B) no compromise or settlement of the underlying such claims may be effected by it the Indemnifying Party without the Indemnified Party’s written consent unless (which will not 1) there is no finding or admission of any violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be unreasonably withheld, delayed made by or conditioned), unless: against the Indemnified Party and (x2) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If notice is given to an Indemnifying Party assumes of the commencement of any Proceeding and the Indemnifying Party does not within twenty (20) days, or such lesser period of time as required to meet any deadline for a response, properly exercise its election to assume the defense of a Third-Party such Proceeding, the Indemnified Indemnifying Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle be bound by any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to determination made in such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, compromise or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding thereof reasonably effected by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of Notwithstanding the defense of any Third-foregoing, if an Indemnified Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that (A) a Proceeding may adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, (B) there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnifying Party or (C) a Proceeding may result in Losses which would reasonably be expected to exceed the Cap, the Indemnified Party may, by notice to the Indemnifying Party, retain the exclusive right to defend, compromise or settle such Proceeding, but the Indemnifying Party will reserve the right to contest indemnification with respect to any determination, compromise or settlement of such Proceeding is effected without its consent (which consent will not required under this Article 8be unreasonably withheld, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Partydelayed or conditioned).
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party other Parties and the Other Party’s other Parties’ Representatives all of its or his Books and Records and, as applicable, employees relating to a Thirdthird-Party Proceeding as may be reasonably requested by the Other Partyparty Proceeding, and each Party will render to the other Parties assistance as may be reasonably cooperate required to insure ensure the proper and adequate defense of such Thirdthird-Party party Proceeding.
(v) Each Party hereby consents to the non-exclusive jurisdiction of any court or other forum in which a Proceeding is brought by a Person not a Party to this Agreement against any Indemnified Party for purposes of litigating a claim that an Indemnified Party may have under this Agreement against an Indemnifying Party with respect to such Proceeding or the matters alleged therein (including its right to indemnification).
Appears in 1 contract
Third Party Proceedings. (i) i. Promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”)it, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party or, with respect to claims against the Company, to Sellers' Representative, of the commencement of such Third-Party Proceeding Proceeding. Such notice must identify the matter for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating , state the estimated amount amounts of the claim (if then quantifiable) reasonably determinable and describing in reasonable detail state the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for basic facts underlying the claim is basedto the extent then known. The failure to timely notify the Indemnifying appropriate Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have affect a Person's rights to an Indemnified Party indemnification except to the extent that the defense of such Third-Party Proceeding action was actually materially prejudiced by the Indemnified Party’s 's failure to provide timely notice or such informationnotice.
ii. A Party required to provide indemnification hereunder or, in the case of any claim for indemnification under Section 7.1(a), Sellers (ii) The Indemnifying Party acting through Sellers' Representative), will be entitled to participate in any Third-Party such Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party it wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap)Proceeding. Following an assumption of defense of by a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnifying Party there will have be no liability for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying a Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent ('s consent, which will not be unreasonably withheldwithheld or delayed, delayed or conditioned), unless: (x) unless the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying a Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying a Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying PartyProceeding; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreementmatter. Without impairing an Indemnified Party’s 's right to seek indemnification, if an Indemnifying a Party does not timely elect to, or is not permitted to, entitled to assume the defense of a Third-Party Proceeding does not elect to assume the defense of such Proceeding, the terms of any settlement of such the Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining establishing such Indemnifying Party’s 's indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents with respect to such Proceeding absent consent to such settlement in writing.
(iii) . The assumption of the defense of any Third-Party Proceeding by an Indemnifying a Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s 's rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding the matter was not required. A Party entitled to assume the defense hereunder may elect to assume such defense at any time during the pendency of the matter, even if initially it did not elect to assume the defense, so long as the assumption of such defense at such later time would not materially and irreparably prejudice the rights of the Indemnified Party. If an Indemnifying a Party timely properly elects to assume the defense of a Third-Party Proceeding matter but subsequently determines in good faith that indemnification with respect to of such Proceeding matter is not required under this Article 87, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished Party in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) . Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party other Parties and the Other Party’s other Parties' Representatives all of his or its Books and Records and, as applicable, employees relating to a Thirdthird-Party Proceeding as may be reasonably requested by the Other Partyparty Proceeding, and each Party will render to the other assistance as may be reasonably cooperate required in order to insure the proper and adequate defense of such Thirdthird-Party party Proceeding.
v. Each Party hereby consents to the non-exclusive jurisdiction of any court in which a Proceeding is brought by a Person not a Party to this Agreement against any Indemnified Party for purposes of litigating a claim that an Indemnified Party may have under this Agreement against a Party with respect to such Proceeding or the matters alleged therein (including its right to indemnification).
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person the Indemnified Party (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing Proceeding. Any delay in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which providing such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure notice to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party it may have to an Indemnified Party Party, except to the extent that the defense of such Third-Party Proceeding action was actually materially and irreparably prejudiced by the Indemnified Party’s failure to provide timely notice or such informationdelay.
(ii) The If any Proceeding is brought against an Indemnified Party and it gives notice to the Indemnifying Party of the commencement of such Proceeding, the Indemnifying Party will be entitled to participate in any Third-Party such Proceeding with respect and, subject to which indemnification has been or will be sought under this Agreement andsubsection (a)(iii) below, to the extent that it wishes and can demonstrate its financial capability to assume and diligently pursue such defense and the Indemnifying Party wishesresolution thereof, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) . Following a proper assumption of defense by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoingan Indemnifying Party, as long as the Indemnifying Party diligently conducts such defense, it will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability liable for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with the defense of such Proceeding, other than reasonable costs incurred in investigation and providing requested assistance. If an the Indemnifying Party assumes the defense of a Third-Proceeding:
(A) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to indemnification hereunder and will be considered an acknowledgment and agreement by the Indemnifying Party Proceedingthat it will pay all Adverse Consequences relating to such claim (without regard to the limitations that would otherwise be applicable under this Article 8, including the Basket and the Cap); and
(B) no compromise or settlement of the underlying such claims may be effected by it the Indemnifying Party without the Indemnified Party’s written consent unless (which will not 1) there is no finding or admission of any violation of Laws or any violation of the rights of any Person and no effect on any other claims that may be unreasonably withheld, delayed made by or conditioned), unless: against the Indemnified Party and (x2) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and and
(yC) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect if notice is given to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes of the commencement of any Proceeding and the Indemnifying Party does not within 20 days, or such lesser period of time as required to meet any deadline for a response, properly exercise its election to assume the defense of a Third-Party such Proceeding, the Indemnified Indemnifying Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle be bound by any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to determination made in such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, compromise or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding thereof reasonably effected by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of Notwithstanding the defense of any Third-Party Proceeding by foregoing, if an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Indemnified Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently : (A) determines in good faith that a Proceeding may adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement; or (B) in good faith concludes that there are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnifying Party, the Indemnified Party may, by notice to the Indemnifying Party, retain the exclusive right to defend, compromise or settle such Proceeding, but the Indemnifying Party will reserve the right to contest indemnification with respect to any determination, compromise or settlement of such Proceeding is effected without its consent (which consent will not required under this Article 8be unreasonably withheld, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Partyconditioned or delayed).
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its its, his or her Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other PartyProceeding, and each Party will render to the Other Party assistance as may be reasonably cooperate required to insure ensure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by a Person entitled If Indemnitee was is or becomes, or was, is or becomes threatened to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a third party (including a Governmental Body) judgment in its favor against such Person (a “Third-Party Proceeding”)Indemnitee, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice the Company shall indemnify Indemnitee to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in reasonable detail the nature of settlement actually and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party reasonably incurred, directly or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced indirectly, by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party Indemnitee in connection with such Proceeding. If an Indemnifying Party assumes Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the defense best interests of the Company and, in the case of a Third-Party Proceedingcriminal proceeding, had no compromise reasonable cause to believe that his or her conduct was unlawful. Indemnitee shall not enter into (and shall not be entitled to indemnification for) any settlement in connection with a Proceeding pursuant to this Section 3 without the prior written consent of the underlying claims may be effected by it without the Indemnified Party’s consent Company (which will shall not be unreasonably withheld, delayed or conditioned), unless: and the Company may settle such a Proceeding on behalf of Indemnitee, but only with the prior written consent of Indemnitee (x) which shall not be unreasonably withheld), except that Indemnitee’s consent to a settlement shall not be required if the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with Company and such settlement would not result in (i) the compromise imposition of a consent order, injunction or settlement; and decree that would restrict the future activity or conduct of Indemnitee, (ii) a finding or admission of a violation of law or violation of the rights of any person by Indemnitee, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against Indemnitee, or (iv) any monetary liability of Indemnitee that will not be promptly paid or reimbursed by the Company. Notwithstanding the foregoing, the Company shall not be obligated to (x) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale of securities of the Company in violation of Section 16(b) of the Exchange Act, or (y) such compromise indemnify or settlement provides advance funds to Indemnitee for a complete release Indemnitee’s reimbursement to the Company of any bonus or incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from liability the sale of securities of the Indemnified Parties with respect Company, as required in each case under the Exchange Act (including but not limited to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle any such Proceeding without the prior written consent reimbursement under Section 304 of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent Sarbanes-Oxley Act of 2002 or Section 954 of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement Dodd-Frank Wall Street Reform and Consumer Protection Act in connection with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption accounting restatement of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify Company or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights payment of the Indemnified PartyCompany of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act).
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Indemnification Agreement (Comtech Telecommunications Corp /De/)
Third Party Proceedings. (i) i. Promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”)him, her or it, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding Proceeding. Such notice will identify the matter for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating , state the estimated amount amounts of the claim (if then quantifiable) reasonably determinable and describing in reasonable detail state the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for basic facts underlying the claim is basedto the extent then known. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such informationnotice.
(ii) . The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap)Proceeding. Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, hereunder (A) the Indemnifying Party will have no liability for any subsequent fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such ProceedingProceeding and (B) if a Seller or the Sellers are the Indemnifying Party, any costs, expenses and Adverse Consequences incurred in connection with such Proceeding will be satisfied solely from the Escrow Funds in the applicable Escrow Account and not directly from such Seller or Sellers, as applicable, and the Parties will execute and deliver to the Escrow Agent any written instructions necessary to disburse the Escrow Funds to satisfy the same. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) unless the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreementmatter. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, to assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse ConsequencesConsequences or any purported admissions or facts or other matters stipulated to in connection with such settlement) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) hereunder unless the Indemnifying Party consents to such settlement in writingwriting or if indemnification is imposed upon such Indemnifying Party pursuant to a final order entered in a Proceeding before a court of competent jurisdiction.
(iii) . The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. An Indemnifying Party may elect to assume the defense of a Proceeding at any time during its pendency, even if initially the Indemnifying Party did not elect to assume such defense, so long as the assumption of such defense at such later time would not materially and irreparably prejudice the rights of the Indemnified Party. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 87, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished Party in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) . Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other other Party and the Other other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Thirdthird-Party Proceeding as may be reasonably requested by the Other Partyparty Proceeding, and each Party will render to the other assistance as may be reasonably cooperate required in order to insure the proper and adequate defense of such Thirdthird-Party party Proceeding.
Appears in 1 contract
Third Party Proceedings. (i) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice Indemnitors shall indemnify Indemnitee to the Indemnifying Party full extent permitted now or hereafter by applicable law, as from time to time amended, subject to the exceptions provided in Section 8 of this Agreement. Without limiting the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying foregoing but subject to the provisions of this Agreement upon which indemnification for Agreement, Indemnitors shall indemnify Indemnitee if Indemnitee is or was a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the claim is based. The failure to timely notify the Indemnifying Party right of Indemnitors) by reason of Indemnitee's past, present or provide the information described above will not relieve the Indemnifying Party future service as a trustee, director or executive officer of any liability that Indemnitor, or, at any such Indemnitor's request, of another enterprise or entity in which any Indemnitor had, directly or indirectly, an interest at the Indemnifying Party may have to an Indemnified Party except to the extent that the defense time of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement andservice, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement against expenses (including the Capattorney's fees). Following an assumption of defense of a Third-Party Proceeding , judgments, fines and amounts paid in settlement (if such settlement is approved in advance by an Indemnifying Party under this AgreementIndemnitors, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will approval shall not be unreasonably withheld) actually and reasonably incurred by Indemnitee in connection with investigating, delayed preparing for, defending or conditioned), unless: settling such action or proceeding. Indemnitors hereby agree to indemnify Indemnitee's spouse (x) whether by statute or at common law and without regard to the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability location of the Indemnified Parties with respect governing jurisdiction) and children as express third-party beneficiaries hereunder to the claim(s) asserted against same extent and subject to the Indemnified Parties in the same limitations applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent to Indemnitee hereunder for claims arising out of the Indemnifying Party; providedstatus of such person as a spouse or child of Indemnitee, however, that the Indemnified Party will have the right including claims seeking damages from marital property (including community property) or property held by Indemnitee and such spouse or property transferred to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity spouse or child. The indemnification provided under this Agreement with respect may not be amended, modified or limited in a manner adverse to such Proceeding or the rights of Indemnitee without the consent of Indemnitee and Indemnitee shall be deemed to be serving in his capacity as an officer, director and/or trustee of any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, Indemnitor in reliance on the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writingAgreement.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Indemnification Agreement (Gables Residential Trust)
Third Party Proceedings. Except for those matters which are the subject of indemnification pursuant to Section 8.6:
(ia) Promptly after receipt by a Person entitled to be indemnified under this Article 8 (an “Indemnified Party”) of notice of the commencement of a Proceeding by a If any third party (including a Governmental Body) against such Person claim, action, suit or proceeding covered by the foregoing agreements to indemnify and hold harmless (a “Third-Third Party Proceeding”)) shall arise, such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, the Indemnitee shall give prompt written notice thereof to the Indemnifying Party Indemnitor as soon as reasonably practicable, and in any event within fifteen (15) days, after an officer of Indemnitee obtains actual knowledge of the commencement existence of such Third-Third Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claimProceeding; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability provided, however, that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified PartyIndemnitee’s failure to provide timely such notice shall not affect the Indemnitee’s right to indemnification unless an Indemnitor is actually prejudiced as a result of such failure. The Indemnitee shall thereupon give the Indemnitor reasonable access to the books and records of the Indemnitee which evidence or support such informationclaim or the act, omission or occurrence giving rise to such claim and the right, upon prior notice during normal business hours, to interview any employee, agent or other Representative of the Indemnitee related thereto. If the Indemnitor disputes its liability with respect to any such claim, the Indemnitor and the Indemnitee shall proceed to negotiate a resolution of such dispute and, if not resolved through negotiations within twenty (20) days, such dispute shall, subject to the terms of this Agreement, be resolved by litigation in an appropriate court of competent jurisdiction. Thereafter, the Indemnitee shall deliver to the Indemnitor, promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court documents) received by the Indemnitee relating to the Third Party Proceeding.
(iib) The Indemnifying Party will be entitled to participate Except as otherwise set forth in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i). Notwithstanding the foregoing8.3, the Indemnifying Party will not be permitted Indemnitor shall have the right to at any time assume the defense of a Third-Third Party Proceeding if: and, in connection therewith, employ counsel reasonably acceptable to the Indemnitee (Ait being acknowledged that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Debevoise & ▇▇▇▇▇▇▇▇ LLP are reasonably acceptable for the purposes of this Section 8.3) to defend against any such ThirdThird Party Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor, which expenses shall be paid solely from, and to the extent of, the Indemnity Escrow Account in the case of a claim by any Newco Indemnitee. Unless and until the Indemnitor has provided notice to the Indemnitee of its election to assume any defense of any Third Party Proceeding, the Indemnitee shall have the right, at its option, to assume and pay for and control the defense of the Third Party Proceeding, in which case the Indemnitor shall be liable for the reasonable, out-Party Proceeding arises of-pocket and documented fees and expenses of one (1) outside counsel (and not any fees and expenses allocated to internal counsel) employed by the Indemnitee which outside counsel shall be reasonably acceptable to the Indemnitor, it being acknowledged and agreed that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Debevoise & ▇▇▇▇▇▇▇▇ LLP are reasonably acceptable for such purposes), which expenses shall be paid solely from, and to the extent of, the Indemnity Escrow Account in the case of a claim by any Newco Indemnitee. Notwithstanding anything to the contrary contained in this Section 8.3 but subject to the last sentence of this Section 8.3(b), in connection with any criminal proceedingThird Party Proceeding in which (x) there is a claim for injunctive relief or a claim other than for monetary damages, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (By) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable specific defenses available to the Indemnified Party Indemnitee which are different from or additional to those available to the Indemnitor and which would be materially adverse to the Indemnitor (as reasonably agreed by the Indemnitor and the Indemnitee) or (z) one or more of the Newco Indemnitees is the Indemnitee and such Indemnitee reasonably determines that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party amount in asserting controversy in such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Third Party Proceeding will exceed has a reasonable prospect of exceeding the remaining amount available in the Indemnified Party will be entitled Indemnity Escrow Account in respect of such claim, then the Indemnitee shall have the right to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreement, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes assume and direct the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If In such an Indemnifying Party assumes event, the defense Indemnitor shall be liable only for the reasonable, out-of-pocket and documented fees and expenses of one (1) outside counsel (and not any fees and expenses allocated to internal counsel) employed by the Indemnitee (which outside counsel shall be reasonably acceptable to the Indemnitor, it being acknowledged and agreed that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Debevoise & ▇▇▇▇▇▇▇▇ LLP are reasonably acceptable for such purposes), which expenses shall be paid solely from, and to the extent of, the Indemnity Escrow Account in the case of a Third-Party Proceeding, claim by any Newco Indemnitee and no settlement shall be made by the Indemnified Party will not settle such Proceeding Indemnitee without the prior written consent of the Indemnifying PartyIndemnitor (which consent may not be unreasonably withheld, it being understood that it shall be unreasonable for the Indemnitor to withhold consent if either (A) (i) the remaining amount available in the Indemnity Escrow Account is in excess of $1 million and (ii) the amounts proposed to be paid in such settlement are at least $1 million more than the remaining amount held in the Indemnity Escrow Account or (B) the remaining amount available in the Indemnity Escrow Account is less than $1 million and the amount proposed to be paid in such settlement exceeds the remaining amount available in the Indemnity Escrow Account the Surviving Corporation will have the right to control settlements in respect of the matters that are the subject of the Specified Liability Letter, subject to the limitations set forth therein).
(c) In the event that (i) counsel selected by the Indemnitee shall be unable to represent the Indemnitee in a Third Party Proceeding due to an actual conflict of interest under applicable standards of professional responsibility requiring such counsel to withdraw from representation of such Indemnitee and (ii) the Indemnitor, after notice of such conflict, has not timely substituted such counsel with counsel of its choosing reasonably acceptable to the Indemnitee not so conflicted, then the Indemnitee shall, upon satisfaction of the foregoing conditions, have the right to select separate counsel of its choosing not so conflicted to participate in the defense of such action on its behalf, at the expense of the Indemnitor; provided, however, that in no case shall Indemnitor be responsible for the reasonable fees and expenses of more than one (1) outside counsel (and not any fees and expenses allocated to internal counsel), which counsel shall be reasonably acceptable to the Indemnitor (it being acknowledged and agreed that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Debevoise & ▇▇▇▇▇▇▇▇ LLP are reasonably acceptable for such purposes), which expenses shall be paid solely from, and to the extent of, the Indemnity Escrow Account in the case of a claim by any Newco Indemnitee. If the Indemnitor fails to acknowledge in writing its obligation to defend against (and pay for same) or settle such Proceeding within thirty (30) days after receiving notice thereof from the Indemnitee, the Indemnitee shall have the right to undertake the defense and settlement of any such Third Party Proceeding, at the Indemnitor’s expense, which expenses shall be paid solely from, and to the extent of, the Indemnity Escrow Account, in the case of a claim by any Newco Indemnitee; provided, however, that (i) if the Indemnitee assumes the defense of any such Third Party Proceeding, the Indemnitee shall not settle such Third Party Proceeding prior to final judgment thereon or forego any appeal with respect thereto without the prior written consent of the Indemnitor (which consent may not be unreasonably withheld, it being understood it being understood that it shall be unreasonable for the Indemnitor to withhold consent if either (A) (i) the remaining amount available in the Indemnity Escrow Account is in excess of $1 million and (ii) the amounts proposed to be paid in such settlement are at least $1 million more than the remaining amount held in the Indemnity Escrow Account or (B) the remaining amount available in the Indemnity Escrow Account is less than $1 million and the amount proposed to be paid in such settlement exceeds the remaining amount available in the Indemnity Escrow Account that the Surviving Corporation will have the right to control settlements in respect of the matters that are the subject of the Specified Liability Letter, subject to the limitations set forth therein) and (ii) the Indemnitor may participate in (but not control) the defense of such action, with its own counsel at its own expense; provided, however, that the Indemnified Party will have Indemnitor shall at no time be liable for the right to settle reasonable fees and expenses of more than one (1) outside counsel (and shall at no time be liable for any such Proceeding without the prior written consent fees or expenses of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreement. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding internal counsel) employed by the Indemnified Party Indemnitee (including with respect which outside counsel shall be reasonably acceptable to the amount of any Adverse Consequences) will not Indemnitor, it being acknowledged and agreed that ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Debevoise & ▇▇▇▇▇▇▇▇ LLP shall be binding on an Indemnifying Party deemed to be reasonably acceptable for the purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to Section 8.3(c)), which expenses shall be reimbursed for its costs paid solely from, and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished of, the Indemnity Escrow Account in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver case of a privilege, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested claim by the Other Party, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceedingany Newco Indemnitee.
Appears in 1 contract
Third Party Proceedings. (i) Promptly Except for Proceedings related to Taxes (which are subject to Section 4.9(h)), promptly after receipt by a Person entitled to be indemnified under this Article 8 7 (an “Indemnified Party”) of notice of the commencement of a Proceeding against such Indemnified Person by any Person other than a third party (Party, including a Governmental Body) against such Person Body (a “Third-Party Proceeding”), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 87, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim thereof (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such informationnotice.
(ii) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i)Proceeding. Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliates; (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses)) or there is a material conflict of interest; or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 7 as a result of the limitations set forth in this Agreement herein (including the Cap); or (D) an injunction or non-monetary or other equitable relief is sought against the Indemnified Party in such Third Party Proceeding (unless such relief sought is not material to such Third Party Proceeding and would not, if granted, materially affect Buyer, any Company or any Affiliate of Buyer, or any of their respective assets, properties operations or businesses. Following an assumption of defense of a Third-Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not be unreasonably withheld, delayed or conditioned), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) claims asserted against the Indemnified Parties in the applicable Third Third-Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying PartyParty (which will not be unreasonably withheld, delayed or conditioned); provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this Agreementmatter. Without impairing an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume the defense of a Third-Party Proceeding, the terms of any settlement of such Proceeding by the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes of determining such Indemnifying Party’s indemnification obligations under this Agreement (including the amount of any Adverse Consequences) hereunder unless the Indemnifying Party consents to such settlement in writing.
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not requiredindemnify. If an An Indemnifying Party timely elects may elect to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8at any time during its pendency, such even if initially the Indemnifying Party may did not elect to transfer assume such defense, so long as the assumption of such defense back to the Indemnified Party, but solely to the extent at such transfer can be accomplished in a manner that later time would not materially and irreparably prejudice the rights of the Indemnified Party.
(iv) Except to the extent it would cause a waiver of a privilegeprivilege or in the event that litigation between the Parties has commenced or is imminent or expressly threatened, each Party will make available to the Other Party and the Other Party’s Representatives all of its Books and Records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Partyrequested, and each Party will reasonably cooperate to insure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Stock and Membership Interest Purchase Agreement (CST Brands, Inc.)
Third Party Proceedings. (ia) Promptly after Reasonably promptly, but in no event more than ten (10) days, following receipt by a Person person entitled to be indemnified under this Article 8 VI (an “Indemnified Party”) of notice of the commencement of a Proceeding by a third party (including a Governmental Body) against such Person (a “Third-Party Proceeding”governmental body), such Indemnified Party will, if a claim for indemnification is to be made against a Party (an “Indemnifying Party”) under this Article 8, give prompt written notice to the Indemnifying Party of the commencement of such Third-Party Proceeding for which indemnification is sought: (A) describing in reasonable detail the nature of and the underlying factual and legal basis for the claim; (B) stating the estimated amount of the claim (if then quantifiable) and describing in reasonable detail the basis on which such amount was calculated; and (C) identifying the provisions of this Agreement upon which indemnification for the claim is based. The failure to timely notify the Indemnifying Party or provide the information described above will not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to an Indemnified Party except to the extent that the defense of such Third-Party Proceeding was actually prejudiced by the Indemnified Party’s failure to provide timely notice or such information.
(iib) The Indemnifying Party will be entitled to participate in any Third-Party Proceeding with respect to which indemnification has been or will be sought under this Agreement hereunder and, to the extent that the Indemnifying Party wishes, to assume the defense of such Third-Party Proceeding (with counsel of its choice that is reasonably satisfactory to the Indemnified Party) by notifying the Indemnified Party of its election to do so within 30 thirty (30) days of receipt of notice of such Proceeding pursuant to Section 8.5(a)(i6.4(a); provided that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its obligation to indemnify the Indemnified Party hereunder in respect of Losses suffered by the Indemnified Party in connection with such Third- Party Proceedings if the same is adversely determined. Notwithstanding the foregoing, the Indemnifying Party will not be permitted to assume the defense of a Third-Party Proceeding if: (A) such Third-Party Proceeding arises in connection with any criminal proceeding, action, indictment, criminal allegation or criminal investigation of the Indemnified Party or its Affiliatesaffiliates; or (B) the Indemnified Party is advised in writing by outside counsel chosen by it that there are one or more legal or equitable defenses available to the Indemnified Party that the Indemnifying Party cannot assert on behalf of the Indemnified Party (assuming the full cooperation of the Indemnified Party in asserting such defenses); or (C) it is reasonably likely that the Adverse Consequences arising or resulting from such Third-Party Proceeding will exceed the remaining amount the Indemnified Party will be entitled to recover pursuant to this Article 8 as a result of the limitations set forth in this Agreement (including the Cap). Following an assumption of defense of a Third-Third- Party Proceeding by an Indemnifying Party under this Agreementhereunder, the Indemnifying Party will have no liability for any fees of legal counsel or other expenses subsequently incurred by the Indemnified Party in connection with such Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, no compromise or settlement of the underlying claims may be effected by it without the Indemnified Party’s consent (which will not to be unreasonably withheld, delayed conditioned or conditioneddelayed), unless: (x) the sole relief provided is monetary damages that are paid in full or otherwise provided for by the Indemnifying Party concurrently with the compromise or settlement; and (y) such compromise or settlement provides for a complete release from liability of the Indemnified Parties with respect to the claim(s) asserted against the Indemnified Parties in the applicable Third Party Proceeding. If an Indemnifying Party assumes the defense of a Third-Party Proceeding, the Indemnified Party will not settle such Proceeding without the prior written consent of the Indemnifying Party; provided, however, that the Indemnified Party will have the right to settle any such Proceeding without the prior written consent of the Indemnifying Party if the Indemnified Party first waives any right to indemnity under this Agreement with respect to such Proceeding or any related claim under this AgreementProceeding. Without impairing If an Indemnified Party’s right to seek indemnification, if an Indemnifying Party does not timely elect to, or is not permitted to, assume controls the defense of a Third-Party Proceeding, the terms of any settlement of Indemnifying Party may participate in such Proceeding by with counsel of its own choice and the Indemnified Party (including with respect to the amount of any Adverse Consequences) will not be binding on an Indemnifying Party for purposes settle such Proceeding without the prior written consent of determining such the Indemnifying Party’s indemnification obligations under this Agreement (including ; provided, however, that the amount Indemnified Party will have the right to settle any such Proceeding without the prior written consent of any Adverse Consequences) unless the Indemnifying Party consents to such settlement in writing.if the Indemnified Party first waives any right to
(iii) The assumption of the defense of any Third-Party Proceeding by an Indemnifying Party will not constitute an admission of responsibility to indemnify or in any manner impair or restrict that Indemnifying Party’s rights to later seek to be reimbursed for its costs and expenses if indemnification with respect to such Proceeding was not required. If an Indemnifying Party timely elects to assume the defense of a Third-Party Proceeding but subsequently determines in good faith that indemnification with respect to such Proceeding is not required under this Article 8, such Indemnifying Party may elect to transfer the defense back to the Indemnified Party, but solely to the extent such transfer can be accomplished in a manner that would not materially and irreparably prejudice the rights of the Indemnified Party.
(ivc) Except to the extent it would cause a waiver of a privilege, each Party party will make available to the Other Party each other party and the Other Partyeach other party’s Representatives representatives all of its Books books and Records records and, as applicable, employees relating to a Third-Party Proceeding as may be reasonably requested by the Other Partyeach other party, and each Party party will reasonably cooperate to insure ensure the proper and adequate defense of such Third-Party Proceeding.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Greenlane Holdings, Inc.)