Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 4 contracts
Samples: Qualifying Transaction Agreement (Mogul Energy International, Inc.), Option Agreement, Qualifying Transaction Agreement (Mogul Energy International, Inc.)
Third Party Claims. (i) With respect to any Third Party ClaimClaims, the Indemnifying Party shall have the right, at its own expenseexpense and at its election, to participate in or assume control of the negotiation, settlement and defense of the Claim through counsel of its choice reasonably acceptable to the other party; provided, that it irrevocably agrees that the Claim is covered by Section 8.1(b) or defence of such Third Party Claim and(c), in as the case may be. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s 's reasonable out-of-pocket expenses incurred as a result of such participation assumption. The election of the Indemnifying Party to assume such control shall be made within the latter of 90 days of receipt of notice of the Third Party Claim or assumptionthirty days after the indemnification obligation arises, failing which the Indemnifying Party shall be deemed to have elected not to assume such control. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in be informed and consulted with respect to the negotiation, settlement or defence defenses of such Third Party Claim at and to retain counsel to act on its own expense behalf, but the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such the Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable Law to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control shall, subject to the provisions of the negotiationSection 8.1, settlement or defence of any Third Party ClaimSection 8.2 and Section 8.3, the Indemnifying Party shall not settle any Third Party Claim without the written consent of after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, that if any such consent is not obtained for any reason, liability on less than the part of other amount which was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 4 contracts
Samples: Purchase Agreement (Textron Inc), Purchase Agreement (Textron Inc), Purchase Agreement (Collins & Aikman Corp)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, expense and with counsel of its choice satisfactory to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption, acting reasonably, to defend and, upon written request from the Indemnified Party, shall defend the Claim (including the negotiation and settlement thereof). If the Indemnifying Party elects or is required to assume such controldefense, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at and to retain separate counsel to act on its own expense behalf, provided that the fees and disbursements of such separate counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential conflicting interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume assumed such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume control of such control defense and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference, without interest, to the Indemnifying Party.
Appears in 4 contracts
Samples: License and Distribution Agreement (Cypress Bioscience Inc), License and Distribution Agreement (Cypress Bioscience Inc), License and Distribution Agreement (Cypress Bioscience Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable and direct out-of-pocket expenses incurred as a result of such participation or assumption. No admission of liability and no settlement, compromise or termination of any Claim, or investigation shall be made without the Indemnifying Party’s consent and the consent of the Indemnified Party affected, such consents not to be unreasonably withheld or delayed. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying same counsel would be inappropriate, in the reasonable opinion of the Indemnified Party’s legal counsel, due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent is of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any a nature such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.that:
Appears in 3 contracts
Samples: Share Exchange Agreement, Share Exchange Agreement, webfiles.thecse.com
Third Party Claims. With respect (i) In the case of any claim asserted by a third party (a “Third Party Claim”) against a Person entitled to indemnification under this Agreement (the “Indemnified Party”), notice shall be given by the Indemnified Party to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought (x) describing in reasonable detail the specific matter that constitutes the basis for such Third Party Claim, the Indemnifying facts known to the Indemnified Party shall have constituting or giving rise to such Third Party Claim, and stating that Losses exist and the right, at its own expense, to participate in amount or assume control good faith estimate of the negotiationLosses from such Third Party Claim, settlement or defence (y) specifying in reasonable detail the individual items of such Losses included in the amount so stated, and (z) providing such documents and other information with respect to such Third Party Claim and, and Losses as are in such event, the possession of or reasonably available to the Indemnified Party so that the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to may assess such Third Party Claim. If the Indemnifying Party fails provides a written notice to assume control the Indemnified Party within ten (10) days after its receipt of notice of such claim that it will indemnify and hold the defence of any Indemnified Parties harmless from all Losses related to such Third Party ClaimClaim (subject to any applicable limitations specified herein, including those in Section 6.5), the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not permit the Indemnifying Party assumes control (at the expense of such Indemnifying Party) to assume the negotiation, settlement or defence defense of any such Third Party ClaimClaim or any Legal Proceeding with a third party resulting therefrom; provided, however, that: (A) the counsel for the Indemnifying Party who shall not settle any Third Party Claim without conduct the written consent defense of such claim or litigation shall be subject to the approval of the Indemnified Party, which consent shall not to be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any (B) the Indemnified Party may participate in such consent is not obtained for any reason, liability on defense at such Indemnified Party’s expense (such expense to be borne by the part of other Indemnified Party only at such times during which the Indemnifying Party shall be limited has properly assumed and maintained such defense); and (C) except as otherwise provided in this Agreement, the failure by any Indemnified Party to give notice of a Third Party Claim to the proposed settlement amountIndemnifying Party as provided in this Agreement shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement (or affect such indemnification obligations), except and only to the extent that, as a result of such failure to give notice, the defense against such claim is materially impaired.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of of, the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of up to the point the Indemnifying Party assumed such participation or assumptioncontrol. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defense). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without may make such payment with the written consent of the Indemnifying Party and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aviation Group Inc), North American Gaming & Entertainment Corp
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (International Menu Solutions Corp)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceedings include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence of any Indemnified Party under the Third Party ClaimClaim in respect of which such payment was made, as finally determined, is less than the amount that was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall have forthwith after receipt of the exclusive right to contestdifference from the Third Party, settle or pay the amount claimed. Whether or not of such difference to the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 2 contracts
Samples: Share Purchase Agreement (Markwest Hydrocarbon Inc), Share Purchase Agreement (Markwest Hydrocarbon Inc)
Third Party Claims. With respect to If an Indemnified Party shall receive notice of any Proceeding, audit, claim, demand or assessment (each, a “Third Party Claim”) against it which may give rise to a claim for Loss under this Article IX, the Indemnified Party shall give the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence prompt written notice of such Third Party Claim andstating in reasonable detail the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such event, the right of indemnification is claimed or arises. The Indemnifying Party shall reimburse be entitled to control the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim through counsel of its choice at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to provided that the Indemnifying Party and acknowledges its responsibility to indemnify the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to for such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of so undertakes any such defense against a Third Party Claim, the Indemnified Party may participate in such defense at its own expense. The Indemnified Party shall have cooperate with the exclusive right Indemnifying Party in such defense and make available to contestthe Indemnifying Party, settle at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or pay under the amount claimedIndemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Whether If the Indemnifying Party does not undertake such defense and elects to allow the Indemnified Party to direct the defense of any such claim or proceeding, the Indemnified Party shall not pay, or permit to be paid, any part of such Third Party Claim unless the Indemnifying Party consents in writing to such payment, such consent not to be unreasonably withheld, or unless the Indemnifying Party withdraws from the defense of such Third Party Claim Liability or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnified Party for such Third Party Claim. If the Indemnifying Party assumes control the defense of any such claims or proceeding pursuant to this Section 9.6, the Indemnifying Party shall have the power and authority to settle or consent to the entry of judgment in respect of such claim or proceeding without the consent of the negotiationIndemnified Party if the judgment or settlement results only in the payment by the Indemnifying Party of money damages and includes a release of the Indemnified Party from any and all liability thereunder, settlement or defence of any Third Party Claimand, in all other events, the Indemnifying Party shall not settle consent to the entry of judgment or enter into any Third settlement in respect of a Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Webmediabrands Inc.), Asset Purchase Agreement (Webmedia Brands Inc.)
Third Party Claims. With respect to any Third Third-Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable and direct out-of-pocket expenses incurred as a result of such participation or assumption. No admission of liability and no settlement, compromise or termination of any Claim, or investigation shall be made without the Indemnifying Party’s consent and the consent of the Indemnified Party affected, such consents not to be unreasonably withheld or delayed. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying same counsel would be inappropriate, in the reasonable opinion of the Indemnified Party’s legal counsel, due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third the Third-Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Third-Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Third-Party Claim without the written consent is of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any a nature such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.that:
Appears in 2 contracts
Samples: Share Exchange Agreement, Agreement
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the Indemnifying PartyParty shall pay the reasonable fees and expenses of one such counsel. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, in which case the Indemnifying Party shall pay the reasonable fees and expenses of one such counsel, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Law or the order of any court, tribunal or regulatory body having jurisdiction to make a payment to any Person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect to of any which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was reasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited submitted to arbitration pursuant to the proposed settlement amountCommercial Arbitration Act (British Columbia).
Appears in 2 contracts
Samples: Securities Exchange Agreement (Pan American Lithium Corp), Securities Exchange Agreement (Pan American Lithium Corp)
Third Party Claims. With respect to any Third Upon the Indemnified Party Claim, informing the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement existence of any event or defence of such claim which may give rise to a Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all against the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall cooperate fully in the defense, negotiation or settlement of such Third Party Claim, it being understood that the defense shall be retained conducted jointly but, as far as strategic initiatives are concerned, the ultimate decision shall remain with the Indemnifying Party. All costs and expenses incurred by the Indemnified Party arising from the Indemnifying Party’s decision to defend, negotiate and settle any such Claims or otherwise howsoever and whatsoever shall be borne absolutely by the Indemnifying Party. If The Indemnified Party shall not settle any matter which may give rise to the Indemnifying Party, having elected ’s liability herein without the latter’s prior written consent. Should the Indemnifying Party obtain a monetary settlement proposal from a third party claimant and the Indemnified Party refuse to assume agree to such control, thereafter fails to defend any such Third Party Claim within a reasonable timesettlement, the Indemnified Party shall be entitled to assume bear the risk of any claim made by such control third party in excess of the proposed settlement amount and the Indemnifying Indemnified Party shall be bound by free to conduct the results obtained by the Indemnified Party with respect to such Third Party Claimdefense, negotiation or settlement. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right decided not to contest, defend such claim or to settle or pay the amount claimed. Whether or not it in a manner unsatisfactory to the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party ClaimParty, the Indemnifying Party shall not settle any Third Party Claim without may, at its sole cost and expense, assume full responsibility for the written consent defense or settlement of the Indemnified Partysuch claim, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on (i) the part of other Indemnifying Party shall be limited conduct its defense or settlement in a manner which does not cause any further Loss to the proposed settlement amountIndemnified Party and (ii) the Indemnifying Party regularly consults with the Indemnified Party during such defense or settlement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (O'Gara Group, Inc.), Stock Purchase Agreement (O'Gara Group, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory such counsellor unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Share Purchase Agreement (Crown Oil & Gas Inc.), Share Purchase Agreement (Crown Oil & Gas Inc.)
Third Party Claims. With respect to any Third Party Claim, the (a) The Indemnifying Party under this Article VII shall have the right, at its own expensebut not the obligation, to participate in conduct and control, through counsel of its choosing, any third party claim, action, suit or assume control of the negotiation, settlement or defence of such proceeding (a “Third Party Claim andClaim”), in such event, and the Indemnifying Party shall reimburse not consent to the entry of judgment or enter into any settlement with respect to a Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed) unless the judgment or proposed settlement involves (i) only the payment of money, (ii) does not impose an injunction or other equitable relief upon the Indemnified Party and (iii) includes as a term thereof the release of the Indemnified Party from all liability with respect to such Third Party Claim. No Indemnified Party may compromise or settle any Third Party Claim for all which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which shall not be unreasonably withheld). The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such action or suit through counsel chosen by the Indemnified Party’s reasonable out-of-pocket ; provided that the fees and expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, counsel shall be borne by the Indemnified Party; provided, further, that such Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to employ separate counsel and to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own expense action or proceeding, the reasonable fees and shall have the right expenses of such separate counsel to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to be borne by the Indemnifying Party and if, but only if, there is a conflict of interest between the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by in the results obtained by conduct of the Indemnified Party with respect to defense of such Third Party Claim. If the Indemnifying Party fails elects not to assume control or conduct the defense or prosecution of the defence of any a Third Party Claim, the Indemnified Party shall have control and conduct (at the exclusive right to contest, settle or pay Indemnifying Party’s expense) the amount claimed. Whether or not Third Party Claim and the Indemnifying Party assumes control of nevertheless shall have the negotiation, settlement right to participate in the defense or defence prosecution of any Third Party ClaimClaim and, the Indemnifying Party shall not settle any Third Party Claim without the written consent at its own expense, to employ counsel of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any its own choosing for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpurpose.
Appears in 2 contracts
Samples: Implementation Agreement, Implementation Agreement (ICO Global Communications (Holdings) LTD)
Third Party Claims. With If any Indemnified Party receives notice of the assertion or commencement of any action, suit, claim or other legal proceeding made or brought by any person or entity who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 6.05(b), it shall have the Indemnifying right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in or assume control the defense of the negotiation, settlement or defence of such any Third Party Claim and, in such event, with counsel selected by it subject to the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionright to control the defense thereof. If the Indemnifying Party elects not to assume compromise or defend such controlThird Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party shall cooperate with the Indemnifying Partymay, shall have the right subject to participate in the negotiationSection 6.05(b), settlement or defence of pay, compromise, defend such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection seek indemnification for any and retention of counselall Losses based upon, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect arising from or relating to such Third Party Claim. If Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the Indemnifying Party fails to assume control of the defence defense of any Third Party Claim, including making available records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Indemnified Party shall have the exclusive right to contestdefending party, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control management employees of the negotiation, settlement or defence non-defending party as may be reasonably necessary for the preparation of any the defense of such Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Famous Daves of America Inc), Asset Purchase Agreement (Famous Daves of America Inc)
Third Party Claims. With respect to any If a claim for indemnity arises in connection with a claim made by a third party (a "Third Party Claim"), the Indemnifying Party shall have the right, at its own expenseany time after receipt of an Indemnification Notice, with respect to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, to assume the defense (which assumption may be made under a reservation of rights) and to control the settlement and compromise of such action or claim at its sole expense. The Indemnified Party shall cooperate in such eventdefense as reasonably necessary, to enable the Indemnifying Party to conduct its defense, including providing the Indemnifying Party with reasonable access to such records as may be relevant to its defense. The Indemnifying Party shall reimburse be entitled to settle any such Third Party Claim without the prior written consent of the Indemnified Party for all provided that the Indemnifying Party provides the Indemnified Party’s Party with reasonable out-of-pocket expenses incurred as a result of assurances that the Indemnified Party will be fully indemnified by the Indemnifying Party in connection with any such participation or assumptionThird Party Claim. The Indemnified Party shall be entitled to retain its own counsel at its own expense in connection with any Third Party Claim that the Indemnifying Party has elected to defend. If the Indemnifying Party elects not to assume such control, conduct the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, may defend and/or settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any such Third Party Claim; provided, however, that the Indemnifying Party shall not settle be liable for any Third Party Claim costs, damages, or expenses arising out of any settlement effected without the its prior written consent of the Indemnified Partyconsent, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on withheld. The Indemnified Party and the part of other Indemnifying Party shall be limited agree to keep each other reasonably informed as to the proposed settlement amountprogress of any matter that is the subject of a Third Party Claim. The Indemnified Party further agrees to take any and all reasonable steps, including (without limitation) those steps reasonably requested by the Indemnifying Party, to mitigate any losses, damages, or expenses with respect to any Third Party Claim under this Agreement and to cooperate with the defense thereof. In the event it is ultimately determined that the Indemnified Party was not entitled to indemnification for a Third Party Claim, and the Indemnifying Party has nonetheless assumed the defense of such asserted liability, then the Indemnified Party shall, at such time as it is ultimately determined that the Indemnified Party was not entitled to indemnification, reimburse the Indemnifying Party for the reasonable costs and expenses, including reasonable attorney's fees, incurred by the Indemnified Party in connection with such assumption.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Southern Security Life Insurance Co), Agreement and Plan of Reorganization (Southern Security Life Insurance Co)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Indemnified Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such the Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-out- of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Indemnified Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Part and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the Indemnifying PartyParty shall pay the reasonable fees and disbursements of one such counsel. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall then be entitled to assume such control control, in which case the Indemnifying Party shall pay the reasonable fees and disbursements of one such counsel, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable laws or the Order of any Governmental Authority having jurisdiction to make a payment to any Person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was reasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amounta court of competent jurisdiction.
Appears in 2 contracts
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, expense and with counsel of its choice satisfactory to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption, acting reasonably, to defend and, upon written request from the Indemnified Party, shall defend the Claim (including the negotiation and settlement thereof). If the Indemnifying Party elects or is required to assume such controldefense, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at and to retain separate counsel to act on its own expense behalf, provided that the fees and disbursements of such separate counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention payment of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential conflicting interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume assumed such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume control of such control defense and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable Law to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment after consulting with the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, and the Indemnifying Party shall not settle any Third Party Claim without the written consent of shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference, with interest, to the Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Option Agreement (Cypress Bioscience Inc), Asset Purchase Agreement (Cypress Bioscience Inc)
Third Party Claims. With If any action, suit, investigation or proceeding (including without limitation negotiations with federal, state, local or foreign tax authorities) shall be threatened or commenced by a third party in respect of which a party (an "Indemnified Party") may make a Claim hereunder, the Indemnified Party shall notify the party obligated to any Third Party Claimindemnify such party hereunder (the "Indemnifying Party") to that effect with reasonable promptness (so as to not prejudice such party's rights) after the commencement or threatened commencement of such action, suit, investigation or proceeding, and the Indemnifying Party shall have the rightopportunity to defend against such action, at its own expensesuit, investigation or proceeding (or, if the action, suit, investigation or proceeding involves to participate in or assume control a significant extent matters beyond the scope of the negotiationindemnity agreement contained herein, settlement or defence of such Third Party Claim and, in such event, those claims that are covered hereby) subject to the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionlimitations set forth below. If the Indemnifying Party elects to assume such controldefend against any action, the Indemnified Party shall cooperate with the Indemnifying Partysuit, shall have the right to participate investigation or proceeding (or, as described in the negotiationpreceding parenthetical, settlement one or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counselmore claims relating thereto), in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by notify the Indemnified Party to that effect with respect to reasonable promptness. In such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claimcase, the Indemnified Party shall have the exclusive right to contestemploy its own counsel and participate in the defense of such matter, settle or pay but the amount claimed. Whether or not fees and expenses of counsel shall be at the Indemnifying Party assumes control expense of the negotiation, settlement or defence Indemnified Party unless the employment of any Third Party Claim, such counsel at the expense of the Indemnifying Party shall have been authorized in writing by the Indemnifying Party. Any party granted the right to direct the defense of a threatened or actual suit, investigation or proceeding hereunder shall: (i) keep the other fully informed of material developments in the action, suit, investigation or proceeding at all stages thereof; (ii) promptly submit to the other copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received in connection with the action, suit, investigation or proceeding; (iii) permit the other and its counsel, to the extent practicable, to confer on the conduct of the defense of the action, suit, investigation or proceeding; and (iv) to the extent practicable, permit the other and its counsel an opportunity to review all legal papers to be submitted prior to their submission. The parties shall make available to each other and each other's counsel and accountants all of its or their books and records relating to the action, suit, investigation or proceeding, and each party shall render to the other such assistance as may be reasonably required in order to insure the proper and adequate defense of the action, suit, investigation or proceeding. The parties shall use their respective good faith efforts to avoid the waiver of any privilege of either party. The assumption of the defense of any matter by an Indemnifying Party shall not settle constitute an admission of responsibility to indemnify or in any Third manner impair or restrict such party's rights to later seek to be reimbursed its costs and expenses if indemnification under this Agreement with respect to such matter was not required. An Indemnifying Party Claim without may elect to assume the written consent defense of a matter at any time during the pendency of such matter, even if initially such party did not elect to assume such defense, so long as such assumption at such later time would not prejudice the rights of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on . No settlement of a matter by the part of other Indemnifying Indemnified Party shall be limited to the proposed settlement amountbinding on an Indemnifying Party for purposes of such party's indemnification obligations hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (VDC Corp LTD), Asset Purchase Agreement (VDC Corp LTD)
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects Subject to assume such controlSection 6.6, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention or unless a representation of counsel, in which case counsel reasonably satisfactory to both the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 2 contracts
Samples: Share Purchase Agreement (Amdocs LTD), Share Purchase Agreement (Amdocs LTD)
Third Party Claims. With respect (i) The Seller Indemnitees or Buyer Indemnitees, as the case may be (the “Indemnified Party”), shall promptly notify the party or parties potentially liable for such indemnification (the “Indemnifying Party”) in writing of any pending or threatened claim, demand or circumstance that the Indemnified Party has determined has given or would reasonably be expected to any give rise to a right of indemnification under this Agreement (including a pending or threatened claim or demand asserted by a third party against an Indemnified Party, such claim being a “Third Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim, demand or circumstance (the “Notice of Claim”). The Indemnifying Party shall have the right, at its own expense, right (but not the obligation) to participate in or assume and control the defense of the negotiation, settlement or defence of such any Third Party Claim and, in such event, and to retain (at the Indemnifying Party shall reimburse Party’s expense) counsel of its choice, reasonably acceptable to the Indemnified Party, to represent the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel to represent the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contestemploy separate counsel, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel, if the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest. The Indemnifying Party shall have ten (10) days from the receipt of the Notice of Claim to notify the Indemnified Party whether or not settle any it desires to defend such Third Party Claim without failing which the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited deemed to have waived such option. The party assuming defense of a Third Party Claim is hereinafter referred to as the proposed settlement amount“Controlling Party” and the other party as the “Co-Party”.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Icad Inc), Asset Purchase Agreement (Icad Inc)
Third Party Claims. With respect An Indemnified Person (a) shall give the party required to make such payment ("Indemnifying Party") prompt notice of any Third Party claim, demand, suit, proceeding or action ("Claim") by any person against the Indemnified Person, (b) shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Claim, (c) shall have the right, at its own expense, not consent to participate in any settlement or assume control compromise of the negotiation, settlement or defence Claim without the written consent of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If (which consent, unless the Indemnifying Party elects has elected to assume the exclusive defense of such controlClaim, the Indemnified Party shall cooperate with not be unreasonably withheld or delayed), and (d) shall permit the Indemnifying Party, shall have if he or it so elects, to assume the right to participate in the negotiation, settlement or defence exclusive defense of such Third Party Claim Claim, all at its own the cost and expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnified Person shall (i) fail to notify or to consult with the Indemnifying PartyParty with respect to any Claim in accordance with subparagraph (a) or (b) above or (ii) consent to the settlement or compromise of any Claim without having received the written consent of the Indemnifying Party (unless, having if the Indemnifying Party has not elected to assume the exclusive defense of such controlClaim or the consent of the Indemnifying Party is unreasonably withheld or delayed), thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party relieved of its indemnification obligation with respect to such Third Party Claim. If the Indemnifying Party fails shall elect to assume control of the defence exclusive defense of any Third Party Claim, it shall notify the Indemnified Party shall have the exclusive right to contestPerson in writing of such election, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, and the Indemnifying Party shall not be liable hereunder for any fees or expenses of the Indemnified Person's counsel relating to such Claim after the date of delivery to the Indemnified Person of such notice of election. In the event of such election, the Indemnified Person shall cooperate with the Indemnifying Party and provide it with access to all books and records of the Indemnified Person relevant to the Claim. The Indemnifying Party will not compromise or settle any Third Party Claim without the written consent of the Indemnified Party, Person (which consent shall not be unreasonably withheld or delayed; provided) if the relief provided is other than monetary damages and such relief would materially and adversely affect the Indemnified Person. Notwithstanding the foregoing, howeverthe party which defends any Claim shall, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountextent required by applicable insurance policies, share or give control thereof to any insurer with respect to such Claim.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Autoinfo Inc), Agreement and Plan of Reorganization (Wachtel Harry M)
Third Party Claims. With In the case of any Claim by or in respect to of any Person other than the Parties (a "Third Party Claim") for which indemnification is sought, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, Shoreline shall have the right to: (a) conduct and control any proceedings or negotiations; (b) perform and control or direct the performance of activities required; (c) take all other steps to participate in the negotiation, settlement settle or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within (provided, that Shoreline shall not settle any such Third Party Claim without the consent of Klondex (which consent shall not be unreasonably withheld) unless the settlement includes a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party complete release of Klondex with respect to the Third Party Claim); and (d) employ counsel to contest any such Third Party Claim. Notwithstanding an election by Shoreline to assume the defense of such Third Party Claim, Klondex shall have the right to employ separate counsel and to participate in the defense of such Third Party Claim, and Klondex shall bear the fees, costs and expenses of such separate counsel. Shoreline shall, within 30 days after delivery of the Notice of Claim to Shoreline, notify Klondex of Shoreline’s intention as to the conduct and control of the defense of such Third Party Claim. Until Klondex has received notice of Shoreline’s election whether to defend any Third Party Claim, Klondex shall take reasonable steps to defend (but may not settle) such Third Party Claim. If the Indemnifying Party fails Shoreline shall decline to assume control the defense of any such Third Party Claim, or Shoreline shall fail to notify Klondex within 30 days after delivery of the defence Notice of any Claim of Shoreline’s election to defend such Third Party Claim, Klondex shall be entitled to defend against such Third Party Claim (provided, that Klondex shall not settle such Third Party Claim without the consent of Shoreline, which consent shall not be unreasonably withheld). Regardless of which Party assumes, or is entitled to conduct, pursuant to this Section 9.3, the defense of a Third Party Claim, the Indemnified Parties agree (A) that neither Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified other Party, which consent shall not be unreasonably withheld withheld; (B) to take reasonable steps to defend any Third Party Claim; (C) to cooperate fully with one another in connection therewith; (D) to keep each other reasonably informed of the status of any Third Party Claim and any related legal proceeding; and (E) to take no action or delayed; providedmake any admissions or statements not required by Law which would adversely affect the defense of any Third Party Claim. NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, howeverAND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountUNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Klondex Mines LTD), Asset Purchase Agreement (Klondex Mines LTD)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Party Claim is of a nature such that the Indemnifying Indemnified Party fails is required by applicable law to assume control of make a payment to any Person (a "THIRD PARTY") with respect to the defence of any Third Party ClaimClaim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Uti Energy Corp), Asset Purchase Agreement (Uti Energy Corp)
Third Party Claims. With respect to any Third Party Claim, the (a) The Indemnifying Party under this ARTICLE VI shall have the right, at its own expensebut not the obligation, to participate in conduct and control, through counsel of its choosing, the defense of any third party claim, action, suit or assume control proceeding (a “Third Party Claim”). Except with the prior written consent of the negotiation, settlement or defence of such Third Party Claim and, in such eventIndemnified Party, the Indemnifying Party shall reimburse may compromise or settle a Third Party Claim that provides for injunctive or other non-monetary relief affecting the Indemnified Party for all or that does not completely release the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If Should the Indemnifying Party elects so elect to assume such control, conduct and control the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence defense of any Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. No Indemnified Party may compromise or settle any Third Party Claim for which the Indemnifying Party has assumed the defense hereunder without the written consent of the Indemnifying Party. The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such action or suit through counsel chosen by the Indemnified Party, which consent provided that the fees and expenses of such counsel shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on borne by the part of other Indemnified Party. If the Indemnifying Party elects not to control or conduct the defense or prosecution of a Third Party Claim, the Indemnified Party shall have the full right to defend against such Third Party Claim and shall be limited entitled to settle or agree to pay in full such Third Party Claim and to recover any amounts paid plus all expenses incurred by the proposed settlement amountIndemnified Party (including attorneys’ fees) from the Indemnifying Party. The Indemnifying Party nevertheless shall have the right to participate in the defense or prosecution of such Third Party Claim and, at its own expense, to employ counsel of its own choosing for such purpose.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vera Therapeutics, Inc.), Asset Purchase Agreement (Vera Therapeutics, Inc.)
Third Party Claims. With respect to any Third Third-Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party the Claim and, in such eventthe event that the Indemnifying Party assumes control of the defense, the Indemnifying Party shall reimburse not be liable to the Indemnified Party for all any fees of any other counsel or other expenses in connection with the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result defense of such participation or assumptionThird-Party Claim. If the Indemnifying Party elects to assume such controlcontrol of the negotiation, settlement or defense of the Claim, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to monitor and participate in the negotiation, settlement or defence defense of such Third that Third-Party Claim at and to retain counsel to act on its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counselbehalf, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party fees and disbursements of that counsel shall be retained paid by the Indemnifying Indemnified Party. If the Indemnifying Party, having elected to assume such controlcontrol of the negotiation, thereafter settlement or defense of the Claim, fails to defend any such Third the Third-Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence defense of the Claim. If any Third-Party Claim is of a nature that the Indemnified Party is required by Applicable Law to make a payment to any Third Party Claimwith respect to the Third-Party Claim before the completion of settlement negotiations or related Legal Proceedings, the Indemnified Party may make that payment and the Indemnifying Party shall not settle any Third Party Claim without the written consent of shall, forthwith after demand by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, reimburse the Indemnified Party for that if any such consent payment unless the Indemnified Party is not obtained for entitled to indemnification under this Agreement and subject to the limitations set forth in Section 7.13. If the amount of any reasonliability of the Indemnified Party under the Third-Party Claim in respect of which that payment was made, liability on as described in the part of other preceding sentence, is finally determined to be less than the amount that was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of the difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Potlatch Corp), Asset Purchase Agreement (Ainsworth Lumber Co LTD)
Third Party Claims. With respect to any Third Party Claim, provided such Claim is solely in respect of money damages and does not seek any injunctive or other equitable relief and settlement of, or an adverse judgment with respect to, such Claim is not, in the reasonable judgment of the Indemnified Party, likely to establish a precedent, custom or practice adverse to the continuing business interests of the Indemnified Party, the Indemnifying Party shall have the right, at its own expenseexpense and by providing notice within thirty (30) days of receiving notice of such Third Party Claim, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall and representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be retained inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). Upon assumption of control by the Indemnifying Party: (i) the Indemnifying Party shall actively and diligently proceed with the defence, compromise or settlement of the Claim at its sole cost and expense, retaining counsel reasonably satisfactory to the Indemnified Party Person; the Indemnifying Party shall keep the Indemnified Party fully advised with respect to the status of the Claim (including supplying copies of all relevant documents promptly as they become available) and shall arrange for its counsel to inform the Indemnified Party on a regular basis of the status of the Claim; and (iii) the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the Claim unless consented to by the Indemnified Party (which consent may not be unreasonably or arbitrarily withheld or delayed). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 2 contracts
Samples: Master Joint Venture Agreement (Aleafia Health Inc.), Master Joint Venture Agreement (Aleafia Health Inc.)
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any person (a "THIRD PARTY") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any then such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amountand finally settled by binding arbitration from which there shall be no appeal.
Appears in 2 contracts
Samples: Support Agreement (O2diesel Corp), Share Purchase Agreement (Capital Environmental Resource Inc)
Third Party Claims. With In the event a Claim Notice is delivered timely with respect to any a Third Party Claim, the Indemnifying Party shall have may assume the right, at its own expense, to participate in or assume defense and control of the negotiation, settlement or defence of such Third Party Claim andby delivery of written notice to the Indemnified Party; provided, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim to the extent the Third Party Claim primarily seeks non-monetary relief or involves criminal allegations. The assumption of the defense by the Indemnifying Party of any Third Party Claim shall not require the Indemnifying Party to agree to be liable for any Damages in respect of such eventThird Party Claim and shall be without prejudice to any rights or defenses of the Indemnifying Party in respect of whether the Indemnified Party is entitled to indemnification under this Article 3 for any particular Damages. Should an Indemnifying Party elect to assume the defense of a Third Party Claim, the Indemnifying Party shall reimburse will not be liable to the Indemnified Party for all legal expenses subsequently incurred by the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionParty in connection with the defense thereof. If the Indemnifying Party elects to assume assumes such controldefense, the Indemnified Party shall cooperate with the Indemnifying Party, shall will have the right to participate in the negotiationdefense thereof and to employ counsel, settlement or defence of such Third Party Claim at its own expense and shall have expense, separate from the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained employed by the Indemnifying Party, it being understood, however, that the Indemnifying Party will control such defense. If the Indemnifying Party, having elected to assume such control, thereafter fails Party chooses to defend any such Third Party Claim within a reasonable timeClaim, all the Indemnified Party shall be entitled to assume such control and Parties will cooperate in the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to defense or prosecution of such Third Party Claim. If Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party fails of records and information reasonably relevant to assume control of the defence such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimedmaterial provided hereunder. Whether or not the Indemnifying Party assumes control Vendor has assumed the defense of the negotiation, settlement or defence of any a Third Party Claim, neither Purchaser nor any of its Affiliates (including the Indemnifying Party shall not settle Corporation) will admit any liability with respect to, consent to the entry of any judgment, or settle, compromise or discharge, any Third Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountVendor.
Appears in 2 contracts
Samples: Share Purchase Agreement (Seitel Inc), Share Purchase Agreement
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any then such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amountand finally settled by binding arbitration from which there shall be no appeal.
Appears in 2 contracts
Samples: Purchase and Subscription Agreement (Powertrader Inc), Purchase Agreement (Powertrader Inc)
Third Party Claims. With (a) The Indemnifying Party under this Article VIII shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within thirty (30) days of receipt of a Third Party Claim Notice from the Indemnified Party with respect thereto, to assume the conduct and control, at the expense of the Indemnifying Party and through counsel of its choosing that is reasonably acceptable to the Indemnified Party, any third party claim, action, suit or proceeding (a "Third Party Claim"), and the Indemnifying Party may compromise or settle the same; provided, that the Indemnifying Party shall give the Indemnified Party advance written notice of any proposed compromise or settlement and shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), consent to or enter into any compromise or settlement that commits the Indemnified Party, to take, or to forbear to take, any action or does not provide for a full and complete written release by the applicable third party of the Indemnified Party. No Indemnified Party may compromise or settle any Third Party Claim for which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld). No Indemnifying Party may consent to the entry of any judgment that does not relate solely to monetary damages arising from any such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld). The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such Third Party Claim through counsel chosen by the Indemnified Party; provided, that the fees and expenses of such counsel shall be borne by the Indemnified Party. If the Indemnifying Party elects not to control or conduct the defense of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, nevertheless shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense of any Third Party ClaimClaim and, the Indemnified Party shall have the exclusive right at its own expense, to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control employ counsel of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any its own choosing for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpurpose.
Appears in 1 contract
Samples: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Third Party Claims. With respect to any Third Party ClaimIf the Indemnified Party’s request for indemnification arises from the claim of a third party, then the Indemnifying Party shall have the right, at its own expense, right to participate in or assume control of the negotiation, settlement defense of the claim or defence of such Third Party Claim and, in such event, any litigation resulting from the claim using counsel selected by the Indemnifying Party shall reimburse Party. Notwithstanding the Indemnified Party for all the Indemnified Indemnifying Party’s reasonable out-of-pocket expenses incurred as a result assumption of such participation or assumption. If the Indemnifying Party elects to assume such controldefense of the claim, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim the claim at its own expense and expense. The Indemnifying Party shall have the right to disagree on reasonable grounds with the selection and retention of counselnot, in which case counsel reasonably satisfactory the defense of the claim, consent to entry of any judgment or enter into any settlement that imposes any obligations on the Indemnified Party other than the payment of monies that are readily measurable for purposes of determining the indemnification obligations of the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on withheld. The Indemnified Party shall furnish the part of other Indemnifying Party in reasonable detail all information the Indemnified Party may have with respect to the claim and shall make available to the Indemnifying Party and its representative all records and other materials that reasonably are required in the defense of the claim and shall otherwise cooperate and assist the Indemnifying Party in the defense of the claim. If the Indemnifying Party does not assume control of the defense of the claim, the Indemnified Party may defend against the claim in the manner it reasonably deems appropriate and, to the extent permitted by this Section 16, shall be limited entitled to indemnification from the proposed settlement amountIndemnifying Party in connection therewith.
Appears in 1 contract
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without is of a nature such that (i) the written consent Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party shall, promptly after demand by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any reimburse the Indemnified Party for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpayment.
Appears in 1 contract
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to so participate or to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption; provided that the Indemnifying Party may participate in, but shall not control, any Claim for injunctive relief. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer or distributor relating to products or services supplied by the Business, (B) a Third Party Claim brought by an Employee, or (C) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any then such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amountand finally settled by binding arbitration from which there shall be no appeal.
Appears in 1 contract
Third Party Claims. With respect to any (a) Upon receiving notice of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such any Third Party Claim and, in such event, for damages and if the Indemnifying Party assumes control, it shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result prior to the time the Indemnifying Party assumed control. In order to assume control of such participation the negotiation, settlement or assumptiondefence of any Third Party Claim, the Indemnifying Party must give the Indemnified Party written notice of its election within 45 days of the Indemnifying Party’s receipt of Notice of Claim in respect of the Third Party Claim. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying PartyParty has assumed control of the Third Party Claim, having elected to assume such control, thereafter fails to defend any it shall not settle such Third Party Claim within unless the settlement shall include as an unconditional term thereof the giving by the claimant or the plaintiff of a reasonable time, full and unconditional release of the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party Party, from all liability with respect to the matters that are subject to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party or otherwise shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of been approved reasonably by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the ------------------ Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third the Claim. Until an Indemnifying Party Claim and, in such event, notifies the Indemnified Party that the Indemnifying Party shall reimburse is assuming the defense thereof, then the Indemnified Party for all may defend against the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result matter in any manner it reasonably may deem appropriate, without prejudice to any of such participation or assumptionits rights hereunder. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in retain counsel to act on its behalf, provided that the negotiation, settlement or defence fees and disbursements of such Third counsel shall be paid by the Indemnified Party Claim at its own expense and shall have unless the right Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of ----------- settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biosource International Inc)
Third Party Claims. With respect If a demand for indemnification arises out of a claim made against a party indemnified hereunder (the “Indemnified Party”) by a person not a party to any this Agreement or affiliated with a party to this Agreement (a “Third Party Claim”), the Indemnified Party shall give prompt notice thereof to the party or parties responsible for indemnifying the Indemnified Party hereunder (such party, the “Indemnifying Party”), stating in reasonable detail the nature of the Third Party Claim, the identity of the Third Party Claimant and the specific representations, warranties or covenants which the Indemnified Party contends the Indemnifying Party has breached. Such notice shall have also indicate whether the right, at its own expense, Indemnified Party intends to participate in or assume control of defend against the negotiation, settlement or defence of such Third Party Claim andClaim. If so, in such event, then the Indemnifying Party shall reimburse cooperate in all reasonable respects with the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of in such participation or assumption. If the Indemnifying Party elects defense, shall make available to assume such control, the Indemnified Party shall cooperate with the Indemnifying Partyall records and other materials reasonably required by Indemnified Party in such defense, and shall have the right to participate in such defense. If Indemnified Party does not intend to defend against the negotiationThird Party Claim, settlement or defence then the Indemnifying Party may assume defense of such the Third Party Claim at through legal counsel of its own expense and shall have the right choice reasonably satisfactory to disagree on reasonable grounds with the selection and retention of counselIndemnified Party, in which case counsel reasonably satisfactory event Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party in such defense, and shall make available to the Indemnifying Party and the their counsel all records and other materials reasonably required in such defense, but Indemnifying Party shall at all times control such defense. So long as a Third Party Claim is pending and is not resolved, Indemnified Party shall be retained by the Indemnifying Partyhold in abeyance its demand for indemnification. If Indemnifying Party reaches a settlement with the Indemnifying Third Party Claimant which results in any liability to Indemnified Party, having elected to assume such controlor if a judgment is rendered against Indemnified Party which judgment is not properly appealed or appealable, thereafter fails to defend any such Third Party Claim within a reasonable time, the then Indemnified Party shall be entitled to assume such control and indemnification in an amount sufficient to discharge the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Each party shall be responsible for its own costs and expenses, including legal fees, incurred in defending a Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Claim except that Indemnifying Party shall not settle any Third Party Claim without the written consent of the pay Indemnified Party, ’s actual costs and expenses (including legal fees) incurred in connection with defending a claim which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other determined adversely to Indemnifying Party and which shall be limited found to the proposed settlement amounthave constituted a breach of Indemnifying Party’s representations, warranties and covenants hereunder.
Appears in 1 contract
Samples: Assignment and Assumption Agreement
Third Party Claims. With respect to any Third Party Claim, the (a) The Indemnifying Party under this ARTICLE X shall have the right, at its own expensebut not the obligation, to participate in conduct and control, through counsel of its choosing, any third party claim, action, suit or assume control of the negotiation, settlement or defence of such proceeding (a “Third Party Claim andClaim”), in such event, and the Indemnifying Party shall reimburse not consent to the entry of judgment or enter into any settlement with respect to a Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed) unless the judgment or proposed settlement involves (i) only the payment of money, (ii) does not impose an injunction or other equitable relief upon the Indemnified Party and (iii) includes as a term thereof the release of the Indemnified Party from all liability with respect to such Third Party Claim. No Indemnified Party may compromise or settle any Third Party Claim for all which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which shall not be unreasonably withheld). The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such action or suit through counsel chosen by the Indemnified Party’s reasonable out-of-pocket ; provided that the fees and expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, counsel shall be borne by the Indemnified Party; provided, further, that such Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to employ separate counsel and to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own expense action or proceeding, the reasonable fees and shall have the right expenses of such separate counsel to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to be borne by the Indemnifying Party and if, but only if, there is a conflict of interest between the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by in the results obtained by conduct of the Indemnified Party with respect to defense of such Third Party Claim. If the Indemnifying Party fails elects not to assume control or conduct the defense or prosecution of the defence of any a Third Party Claim, the Indemnified Party shall have control and conduct (at the exclusive right to contest, settle or pay Indemnifying Party’s expense) the amount claimed. Whether or not Third Party Claim and the Indemnifying Party assumes control of nevertheless shall have the negotiation, settlement right to participate in the defense or defence prosecution of any Third Party ClaimClaim and, the Indemnifying Party shall not settle any Third Party Claim without the written consent at its own expense, to employ counsel of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any its own choosing for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpurpose.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (American Standard Companies Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to monitor, but not participate in the negotiation, settlement or defence of of, such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by Applicable Law to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related Legal Proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim with respect to which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Weyerhaeuser Co
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Share Purchase Agreement (Kinetic Concepts Inc /Tx/)
Third Party Claims. With respect to any Third Party ClaimClaim in respect of which, subject to Section 9.4, the Indemnifying Party is or may be obligated under or arising out of this Agreement to indemnify, pay damages to or otherwise compensate the Indemnified Party, the following provisions shall have apply. The Indemnified Party shall promptly give written notice to the rightIndemnifying Party of any Third Party Claim in respect of which the Indemnified Party intends to claim for indemnification against the Indemnifying Party. The Indemnifying Party shall, at its own expense, to participate in or assume control of the negotiation, settlement or defence and defense of such Third Party Claim. The Indemnified Party shall co-operate with the Indemnifying Party in respect of such Third Party Claim and, in such event, and the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, ’s assumption of control of such Third Party Claim and arising from the Indemnified Party’s co-operation. The Indemnified Party shall have the right to participate in the negotiation, settlement or defence and defense of such Third Party Claim at its own expense expense, provided that the fees and disbursements of the Indemnified Party’s counsel shall be paid by the Indemnifying Party if the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and the representation of both of them by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), and the Indemnified Party will have the right to disagree on reasonable grounds with the selection and retention of counselcounsel by the Indemnifying Party, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter Party fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control of the Third Party Claim at the expense of the Indemnifying Party and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails The following provisions shall also apply with respect to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.Claims:
Appears in 1 contract
Samples: Royalty Purchase and Sale Agreement (Royal Gold Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the 44 -40- Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Party Claim is of a nature such that the Indemnifying Indemnified Party fails is required by applicable law to assume control of make a payment to any Person (a "THIRD PARTY") with respect to the defence of any Third Party ClaimClaim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With respect If such Claim relates to any action, suit, proceeding or demand instituted against the Indemnified Party by a third party (a "Third Party Claim"), the Indemnifying Party shall be entitled to assume the defense of such Third Party Claim against such claimant (a "Third Party Claimant") after receipt of such notice from the Indemnified Party, and in the case of such an assumption the Indemnifying Party shall have the authority to negotiate, compromise and settle such Third Party Claim. The Indemnified Party shall retain the right to employ its own counsel and to participate in the defense of any Third Party Claim, the defense of which has been assumed by the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim andParty, in such event, the Indemnifying Party shall reimburse which case the Indemnified Party shall bear and shall be solely responsible for all the Indemnified Party’s reasonable out-of-pocket its own costs and expenses incurred as a result of in connection with such participation or assumptionparticipation. If the Indemnifying Party elects to does not assume such controlthe defense of any Third Party Claim as provided in this Section, the Indemnified Party shall cooperate with may defend the Third Party Claim as it determines in its sole discretion at the expense and risk of the Indemnifying Party. Notwithstanding the foregoing provisions of this Section, (i) no Indemnifying Party shall have be entitled to settle any Third Party Claim without the right Indemnified Party's prior written consent unless as part of such settlement the Indemnified Party is released in writing from all liability with respect to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the (ii) no Indemnified Party shall be entitled to assume settle any Third Party Claim without the Indemnifying Party's prior written consent unless as part of such control and settlement the Indemnifying Party shall be bound by the results obtained is released by the Indemnified Party and the Third Party Claimant in writing from all liability (including all liability under this Article XIII) with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimFurther, the Indemnified Party neither shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the other's prior written consent if the terms of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if settlement would involve any such consent is not obtained for any reason, liability limitation on the part future activities of other Indemnifying Party shall be limited to the proposed settlement amountother.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cardiotech International Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Legal Requirements to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment, up to $25,000 without the Indemnifying Party's consent and over $25,000 with the Indemnifying Party's consent and the Indemnifying Party fails shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment, provided that: (i) any such payment shall be made on the basis that it is without prejudice to assume control either the Indemnified Party's or the Indemnifying Party's position VIS-A-VIS the Third Party Claim and (ii) the Indemnified Party first gives a written notice to the Indemnifying Party setting out the nature of the defence Claim in sufficient detail to enable the Indemnifying Party to reasonably satisfy itself that it would be responsible for the Claim pursuant to the provisions hereof. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If any payment pursuant to Section 16.8, resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control of the negotiationare unable to agree whether such payment was required to be made, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited submitted to the proposed settlement amountarbitration pursuant to Article 18.
Appears in 1 contract
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionClaim. If the Indemnifying Party elects to assume such control, the Indemnifying Party shall reimburse the Indemnified Party shall cooperate with for all of the Indemnified Party's reasonable out-of-pocket expenses incurred up to the time of such participation or assumption by Indemnifying Party, . The Indemnified Party shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without is of a nature such that the written consent Indemnified Party is required by applicable law or the order of any court, tribunal or regulatory body having jurisdiction to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party shall, promptly after demand by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any reimburse the Indemnified Party for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpayment.
Appears in 1 contract
Samples: Amended Share Purchase Agreement (Smart-Tek Solutions Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf. provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Share Purchase Agreement (International Menu Solutions Corp)
Third Party Claims. With respect In connection with any claim which may give rise to indemnity hereunder resulting from or arising out of any Third proceedings by a Person other than the Indemnified Parties, the Indemnifying Party Claimmay, upon written notice to the Indemnified Party within 30 days of receipt of notice under Section 8.04, assume the defense of any such proceeding (at the sole expense of the Indemnifying Party) if and only if (a) the Indemnifying Party acknowledges its obligation to indemnify the Indemnified Party for any Losses resulting from such proceeding, (b) the proceeding does not seek to impose any liability on the Indemnified Party other than for monetary damages and (c) where a Buyer Indemnified Party is the Indemnified Party, the proceeding does not relate to a Buyer Indemnified Party’s relationship with its employees. If the Indemnifying Party is entitled to assume, and assumes, the defense of any such proceeding, the Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party to conduct the defense of such proceedings and shall take all steps reasonably necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or proceeding, the defense of which has been assumed by the Indemnifying Party, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall be entitled to participate in (but not control) the defense of any such proceeding, with its own counsel and at its own expense. If the Indemnifying Party is not entitled to assume, or does not assume within 30 days after the date such claim is made, the defense of any such claim or proceeding: (i) the Indemnified Party shall be entitled to defend against such claim or proceeding and shall have the right to undertake all steps in the defense or settlement thereof, at the sole expense of the Indemnifying Party; provided that the Indemnified Party shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or proceeding, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed), and (ii) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party shall have the right, at its own expense, burden to participate in or assume control prove by a preponderance of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse evidence that the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as did not defend or settle such third party claim in a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountprudent manner.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Third Party Claims. With respect to any Third Party Claim, following the delivery of the Claim Notice, subject to the limitations set forth in this Section 7.9, the Indemnifying Party shall have the right, exercisable upon written notice to the Indemnified Party as promptly as practicable and in any event within 15 days after the Indemnifying Party’s receipt of a Claim Notice in respect of a Third Party Claim, to elect to conduct and control the defense, compromise or settlement of such Third Party Claim, at its sole cost and expense and with counsel of its choice reasonably acceptable to the Indemnified Party; provided, however, that the Indemnified Party may participate in such defense (but not control or make decisions related thereto) with its own counsel and at its own expense, to participate in or assume control of . Notwithstanding the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claimforegoing, the Indemnified Party shall have the exclusive right to contestconduct and control the defense, settle compromise or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, Claim with counsel of its choice and at the Indemnifying Party’s sole cost and expense if: (a) the Indemnifying Party shall not have given notice of its election to conduct and control the defense of such Third Party Claim within 15 days after the Indemnifying Party’s receipt of a Claim Notice in respect thereof; (b) the Indemnifying Party shall fail to conduct such defense diligently and in good faith; (c) the Indemnified Party shall reasonably determine, after consultation with its counsel, that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would be reasonably likely to present such counsel with a conflict of interest; (d) such Third Party Claim seeks injunctive, equitable or other non-monetary relief against the Indemnified Party or monetary damages in excess of the Cap; or (e) such Third Party Claim relates to or otherwise arises in connection with any criminal or regulatory proceeding. Neither the Indemnifying Party nor the Indemnified Party shall settle or compromise, or permit any default or consent to entry of any judgment in respect of any Third Party Claim without the prior written consent of the Indemnified Partyother party, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Arrangement Agreement (Marizyme Inc)
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention or unless representation of counsel, in which case counsel reasonably satisfactory to both the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying same counsel would be inappropriate, in the reasonable opinion of the Indemnity Party's counsel, due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall co-operate with the Indemnifying Party so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party reasonable access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim as reasonably requested so as not to materially interfere with the Indemnified Party's business. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, in the reasonable opinion of the Indemnified Party's counsel, then the Indemnified Party shall be entitled entitled, at the Indemnifying Party's expense, to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, then such dispute, and the amount to be paid by the Indemnified Party to the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; providedif any, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited referred to the proposed settlement amountand finally settled by binding arbitration as contemplated herein from which there shall be no appeal.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Indemnified Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such the Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Indemnified Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Part and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the Indemnifying PartyParty shall pay the reasonable fees and disbursements of one such counsel. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall then be entitled to assume such control control, in which case the Indemnifying Party shall pay the reasonable fees and disbursements of one such counsel, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable laws or the Order of any Governmental Authority having jurisdiction to make a payment to any Person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was reasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amounta court of competent jurisdiction.
Appears in 1 contract
Samples: Amalgamation Agreement
Third Party Claims. With If a claim by a third party is made against an indemnified party (i.e., a Seller Indemnified Party or a Buyer Indemnified Party), and if such indemnified party intends to seek indemnity with respect thereto under Articles IX or X, such indemnified party shall promptly notify the indemnifying party in writing of such claims setting forth such claims in reasonable detail. The indemnifying party shall have forty-five (45) days after receipt of such notice to any Third Party Claimundertake, through counsel of its own choosing and at its own expense, the Indemnifying Party defense thereof. If the indemnifying party elects to undertake such defense, the indemnified party shall have cooperate with it in connection therewith and the rightindemnified party may participate in such settlement or defense through counsel chosen by such indemnified party, it being understood that the indemnifying party shall control such defense and that the fees and expenses of counsel chosen by the indemnified party shall be borne by such indemnified party. If the indemnifying party elects not to undertake such defense, the indemnifying party will be entitled, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimeddefense. Whether or not the Indemnifying Party assumes control indemnifying party shall have assumed the defense of a third party claim, (a) the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party indemnified party shall not settle admit any Third Party Claim liability with respect to, or settle, compromise or discharge, such third party claim without the indemnifying party's prior written consent (which consent shall not be unreasonably withheld), and (b) neither party shall, without the written consent of the Indemnified Partyother party, which settle or compromise or consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.entry of any judgment with respect to any action or third party claim if the effect thereof is to admit any criminal liability by, or to permit any injunctive relief or other order providing non-monetary relief to be entered against, the other party. In the case of any inconsistency between the provisions of this Section 9.3 and the provisions of Section 10.6, the provisions of Section 10.6 shall govern. -62-
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, that if any such consent is not obtained for any reason, liability on less than the part of other amount which was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Eagle Outfitters Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Claim. The Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-'s out of pocket expenses incurred as a result of such negotiation, settlement or defence included as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel, at its own expense expense, to act on its behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of inconsistent defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right provide prior written notice thereof to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, and thereafter may make such payment and the Indemnifying Party shall not settle any Third Party Claim without the written consent of shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With (a) The Indemnifying Party under this Article VIII shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within thirty (30) days of receipt of a Third Party Claim Notice from the Indemnified Party with respect thereto, to assume the conduct and control, at the expense of the Indemnifying Party and through counsel of its choosing that is reasonably acceptable to the Indemnified Party, the defense of any third party claim, action, suit or proceeding (a “Third Party Claim”), and the Indemnifying Party may compromise or settle any such Third Party Claim it has elected to assume and control the defense of; provided, that the Indemnifying Party shall give the Indemnified Party reasonable advance written notice of any proposed compromise or settlement and shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), consent to or enter into any compromise or settlement that commits the Indemnified Party to take, or to forbear to take, any action, provides for other equitable relief, contains any admission as to wrongdoing by the Indemnified Party, or does not provide for a full and complete written release by the applicable third party of the Indemnified Party. No Indemnified Party may compromise or settle any Third Party Claim for which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld). No Indemnifying Party may consent to the entry of any judgment that does not relate solely to monetary damages for which the Indemnifying Party is responsible arising from any such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld). The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such Third Party Claim through counsel chosen by the Indemnified Party; provided, that the fees and expenses of such counsel shall be borne by the Indemnified Party. If the Indemnifying Party elects not to control or conduct the defense of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, nevertheless shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense of any Third Party ClaimClaim and, at its own expense, to employ counsel of its own choosing for such purpose. Notwithstanding the foregoing, with respect to any Third Party Claim that the Indemnifying Party is defending, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not retain one additional separate counsel reasonably acceptable to the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, to represent it and the Indemnifying Party shall not settle pay the reasonable fees and expenses of such separate counsel if there are conflicts existing under applicable standards of professional conduct with respect to any Third Party Claim without the written consent of material issues between the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on Party and the part of other Indemnifying Party shall be limited that make it reasonable for separate counsel to represent the proposed settlement amountIndemnified Party and the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Prestige Brands Holdings, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails elects to assume control of the defence of any Third Party Claimsuch control, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless: (a) the Indemnifying Party consents to the retention of such counsel; (b) unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and the representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences); or (c) Purchaser shall have reasonably concluded that Purchaser's interests could only be adequately protected by Purchaser's direct participation in or defense of the action, suit or proceeding. If any Third Party Claim is of a nature such that: (a) the Indemnified Party is required by applicable law or the order of any court, tribunal or regulatory body having jurisdiction; or (b) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices in respect of: (i) a Third Party Claim by a customer relating to products or services supplied by the Business; or (ii) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof by a reasonable and prudent operator in substantially the same manner in which it has heretofore been operated by the Corporation in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party shall, immediately after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, immediately after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party and the Indemnifying Party shall not settle any are unable to agree whether such payment was reasonable in the circumstances having regard to the amount and merits of the Third Party Claim without the written consent of the Indemnified PartyClaim, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited submitted to arbitration pursuant to the proposed settlement amount.Arbitrations Act, 1991 (Ontario). All such arbitrations shall be governed by the following rules:
Appears in 1 contract
Samples: Share Purchase Agreement (Hastings Manufacturing Co)
Third Party Claims. With respect to any If a claim for indemnity arises in connection with a claim made by a third party (a "Third Party Claim"), the Indemnifying Party shall have the right, at its own expenseany time after receipt of an Indemnification Notice, with respect to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, to assume the defense (which assumption may be made under a reservation of rights) and to control the settlement and compromise of such action or claim at its sole expense. The Indemnified Party shall cooperate in such event, defense as reasonably necessary to enable the Indemnifying Party to conduct its defense, including providing the Indemnifying Party with reasonable access to such records as may be relevant to its defense. The Indemnifying Party shall reimburse be entitled to settle any such Third Party Claim without the prior written consent of the Indemnified Party for all provided that the Indemnifying Party provides the Indemnified Party’s Party with reasonable out-of-pocket expenses incurred as a result of assurances that the Indemnified Party will be fully indemnified by the Indemnifying Party in connection with any such participation or assumptionThird Party Claim. The Indemnified Party shall be entitled to retain its own counsel at its own expense in connection with any Third Party Claim that the Indemnifying Party has elected to defend. If the Indemnifying Party elects not to assume such control, conduct the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, may defend and/or settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any such Third Party Claim; provided, however, that the Indemnifying Party shall not settle be liable for any Third Party Claim costs, damages, or expenses arising out of any settlement effected without the its prior written consent of the Indemnified Partyconsent, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on withheld. The Indemnified Party and the part of other Indemnifying Party shall be limited agree to keep each other reasonably informed as to the proposed settlement amountprogress of any matter that is the subject of a Third Party Claim . The Indemnified Party further agrees to take any and all reasonable steps, including (without limitation) those steps reasonably requested by the Indemnifying Party, to mitigate any losses, damages, or expenses with respect to any Third Party Claim under this Agreement and to cooperate with the defense thereof. In the event it is ultimately determined that the Indemnified Party was not entitled to indemnification for a Third Party Claim, and the Indemnifying Party has nonetheless assumed the defense of such asserted liability, then the Indemnified Party shall, at such time as it is ultimately determined that the Indemnified Party was not entitled to indemnification, reimburse the Indemnifying Party for the reasonable costs and expenses, including reasonable attorney's fees, incurred by the Indemnified Party in connection with such assumption.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Paradigm Medical Industries Inc)
Third Party Claims. With respect to In the case of any Third Party ClaimClaim for which indemnification is sought, the Indemnifying Party shall have the rightright to: (i) conduct and control any proceedings or negotiations; (ii) to perform and control or direct the performance of activities required, at its own expense, (iii) take all other steps to participate in settle or assume control of the negotiation, settlement or defence of defend any such Third Party Claim and, in such event, claim (provided that the Indemnifying Party shall reimburse not admit to any wrongdoing by the Indemnified Party for all or settle any such claim without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless the settlement includes a complete release of the Indemnified Party with respect to the claim); and (iv) employ counsel (reasonably acceptable to the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of ) to contest any such participation claim or assumptionliability. If In the event the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense conduct and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend control any such Third Party Claim within a reasonable timeproceedings itself, the Indemnified Party shall be entitled to assume such control fully participate at its own expense and by its own counsel reasonably acceptable to the Indemnifying Party shall be bound by in any proceedings relating to any Third Party Claim. The Indemnifying Party shall, within sixty (60) days after delivery of the results obtained by Notice to the Indemnifying Party, notify the Indemnified Party with respect of its intention as to the conduct and control of the defense of such Third claim. Until the Indemnified Party Claimhas received notice of the Indemnifying Party’s election whether to defend any claim, the Indemnified Party shall take reasonable steps to defend (but may not settle) such claim. If the Indemnifying Party fails shall decline to assume control the defense of any such claim, or the Indemnifying Party shall fail to notify the Indemnified Party within sixty (60) days after delivery of the defence Notice of any Third Party Claimthe Indemnifying Party’s election to defend such claim, the Indemnified Party shall have defend against such claim (provided that the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Indemnified Party shall not settle any Third Party Claim such claim without the written consent of the Indemnified Party, Indemnifying Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided)). Regardless of which Party shall assume the defense of the claim, however, that if the Parties agree to cooperate fully with one another in connection therewith and to keep each other reasonably informed of the status of the claim and any related proceeding and shall take no action or make any admissions or statements not required by Applicable Law which would adversely affect the defense of any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountclaim.
Appears in 1 contract
Third Party Claims. With If any Indemnified Party receives written notice of the assertion or commencement of any Action or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party, the Indemnified Party shall give the Indemnifying Party prompt written notice thereof (a “Claim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations. Such Claim Notice shall describe the Third Party Claim in reasonable detail, shall include a copy of all papers served with respect to such Third Party Claim, if any, and any other documents reasonably necessary (as determined by the Indemnified Party) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in or, by giving written notice within ten (10) Business Days of receipt of a Third Party Claim, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided, that such notice contains confirmation that the Indemnifying Party has agree to indemnify the Indemnified Party (subject to the limitation on indemnification set forth herein) for the Losses arising out of or resulting from the Third Party Claim of which it is assuming the right to conduct and control the defense thereof. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.5(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim if: (i) such claim is part of an Action to which the Indemnifying Party is also a party and the Indemnified Party is advised by counsel that a conflict exists as a result of the Indemnifying Party’s control over such proceedings, (ii) such Third Party Claim seeks injunctive or other equitable relief against the Indemnified Party, (iii) the Third Party Claim relates to or arises in connection with any governmental proceeding, action, indictment, allegation or investigation in respect of the business of Buyer or their respective Affiliates, (iv) the Indemnifying Party failed or is failing to reasonably prosecute or defend such Third Party Claim, or (v) such claim involves any customer, supplier, distributor or other material business relation of Buyer or its Affiliates. If the Indemnifying Party has validly made such election, the Indemnified Party shall have the right, at its own cost and expense, to participate in or assume control the defense of the negotiation, settlement or defence of such any Third Party Claim and, in such event, with counsel selected by it subject to the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionright to control the defense thereof. If the Indemnifying Party elects not to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement compromise or defence of defend such Third Party Claim at or fails to promptly notify the Indemnified Party in writing of its own expense and shall have the right election to disagree on reasonable grounds with the selection and retention of counseldefend as provided in this Agreement, in which case counsel reasonably satisfactory to the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the The Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by cooperate with each other in all reasonable respects to ensure the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence proper and adequate defense of any Third Party Claim, including making available Books and Records and other information relating to such Third Party Claim and furnishing employees and representatives as may be reasonably necessary for the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control preparation of the negotiation, settlement or defence defense of any such Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Digerati Technologies, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of in response to such Third Party Claim prior to and during such participation or prior to such assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to a conflict of interest not waived by the affected party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that: (a) the Indemnified Party is required by applicable law or the order of any court, tribunal or regulatory body having jurisdiction; or (b) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices in respect of: (i) a Third Party Claim by a customer relating to products or services supplied by the Business; or (ii) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof by a reasonable and prudent operator in substantially the same manner in which it has heretofore been operated by the 42 -38- Corporation in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was reasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited submitted to arbitration pursuant to the proposed settlement amountFederal Arbitration Act, 9 U.S.C. sections 1-16.
Appears in 1 contract
Third Party Claims. (i) With respect to any Third Party ClaimClaims, the Indemnifying Party shall have the right, at its own expenseexpense and at its election, to participate in or assume control of the negotiation, settlement or defence and defense of such Third Party the Claim and, in through counsel of its choice. In such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s 's reasonable out-of-pocket expenses incurred as a result of such participation or assumption. The election of the Indemnifying Party to assume such control shall be made within 60 days of receipt of notice of the Third Party Claim, failing which the Indemnifying Party shall be deemed to have elected not to do so. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in be informed and consulted with respect to the negotiation, settlement or defence defenses of such Third Party Claim at and to retain counsel to act on its own expense behalf, but the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such the Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified party is required by applicable Law to make a payment to any Person (a "THIRD PARTY") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, may make such payment and the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith, after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, that if any such consent is not obtained for any reason, liability on less than the part of other amount which was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Purchase Agreement (Biolabs Inc)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party Seller shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionClaim. If the Indemnifying Party Seller elects to assume such control, the Indemnified Party Buyer shall cooperate with the Indemnifying PartySeller, but shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own the reasonable expense of Buyer and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party Seller and the Indemnified Party Buyer shall be retained by the Indemnifying PartySeller. If the Indemnifying PartySeller, having elected to assume such control, thereafter fails fail to defend any such Third Party Claim within a reasonable period of time, the Indemnified Party Buyer shall be entitled to assume such control and the Indemnifying Party Seller shall be bound by the results obtained by the Indemnified Party Buyer with respect to such Third Party Claim. If the Indemnifying Party Seller fails to assume control of the defence defense of any Third Party Claim, the Indemnified Party Buyer shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party Seller assumes control of the negotiation, settlement or defence defense of any Third Party Claim, the Indemnifying Party neither party shall not settle any Third Party Claim without the written consent of the Indemnified Partyother party hereto, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any . If such consent is not obtained for unreasonably withheld, conditioned or delayed, any reason, liability on the part of other Indemnifying Party settlement made in good faith shall be limited to binding upon the proposed settlement amountother party.
Appears in 1 contract
Third Party Claims. With respect Subject to Section 7.4(h), In the event that any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the is brought against an Indemnified Party with respect to such Third Party Claim. If which the Indemnifying Party fails to assume control may have liability under this Agreement, the Third Party Claim shall, upon the written agreement of the defence of Indemnifying Party, be defended by the Indemnifying Party at its sole cost and expense by counsel reasonably acceptable to the Indemnified Party and such defense shall include all appeals or reviews which counsel for the Indemnifying Party shall deem appropriate. For any such Third Party Claim, the Indemnified Party shall have the exclusive right to contestbe represented by advisory counsel and accountants, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiationat its own expense, settlement or defence of any Third Party Claim, and the Indemnifying Party shall keep the Indemnified Party fully informed as to such proceeding at all stages thereof, whether or not the Indemnified Party is represented by its own counsel. The Indemnifying Party shall have the right to elect to settle any Third Party Claim claim for monetary damages without the written Indemnified Party’s consent only if the settlement includes a complete release of the Indemnified Party and no non-monetary relief or other limitations that would apply to the Indemnified Party. If the settlement does not include such a release or does contain or provide for any such non-monetary relief or other limitations, it will be subject to the consent of the Indemnified Party, which consent will not be unreasonably withheld. The Indemnifying Party may not admit any liability of the Indemnified Party or waive any of the Indemnified Party’s rights without the Indemnified Party’s prior written consent. It shall not be unreasonably withheld deemed unreasonable to withhold consent to a settlement involving injunctive or delayed; providedother non-monetary relief against the Indemnified Party or its assets, howeveremployees, that if any such consent is not obtained for any reason, liability on the part business or methods of other Indemnifying Party shall be limited to the proposed settlement amountdoing business.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Diedrich Coffee Inc)
Third Party Claims. With The obligations and liabilities of any of the parties to this Agreement under this Section 9.2 with respect to proceedings initiated by third parties (the "Third Party Claims") will be subject to the following terms and conditions: (i) upon receipt of written notice of any Third Party ClaimClaim asserted against, resulting to, imposed upon or incurred by Chesapeake and its affiliates or the Shareholders, as the case may be (the "Indemnified Party"), the party from whom indemnification is sought (the "Indemnifying Party shall have the rightParty") may, at its own expense, to participate in or assume control and, upon notice to the Indemnified Party undertake the defense thereof by counsel of its own choosing, which counsel shall be reasonably satisfactory to the negotiationIndemnified Party, settlement or defence provided that, if representation of both the Indemnified Party and the Indemnifying Party by the same counsel with respect to such Third Party Claim andwould be inappropriate under applicable standards of professional conduct, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume select counsel of its own choosing (with the fees and costs of such control counsel being at the Indemnifying Party's sole cost and expense); (ii) if within a reasonable time after written notice to the Indemnifying Party shall be bound by of its intention to undertake the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence defense of any Third Party Claim, the Indemnifying Party shall not settle any fails to defend the Indemnified Party against whom such Third Party Claim has been asserted, the Indemnified Party will have the right to undertake the defense, compromise or settlement of such Third Party Claim on behalf of and for the account and at the risk of the Indemnifying Party; (iii) anything in this Section 9.2(c) to the contrary notwithstanding, if there is a reasonable probability in the Indemnified Party's judgment that a claim may materially and adversely affect the Indemnified Party, other than as a result of money damages or other money payments, the Indemnified Party will have the right to defend, co-defend, compromise or settle such Third Party Claim (with full disclosure of the proposed settlement terms being given to the Indemnifying Party prior to settlement thereof) by selecting counsel of its own choosing (with the fees and costs of such counsel being the Indemnified Party's sole cost and expense); (iv) the Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such defense, compromise or settlement including, without limitation, by making available to the written consent Indemnifying Party all pertinent information and all books and records under the control of the Indemnified Party, which consent ; (v) the Indemnifying Party shall not be unreasonably withheld compromise or delayed; provided, however, that if settle any such consent action, suit, proceeding, claim or demand without the prior written approval of the Indemnified Party; provided that, if such prior written approval is not obtained for any reasonwithheld by the Indemnified Party, the liability on of the part of other Indemnifying Party with respect to such action, suit, proceeding, claim or demand shall be limited to the proposed amount of the settlement amountrecommended by the Indemnifying Party and not approved by the Indemnified Party.
Appears in 1 contract
Samples: Exhibit 1 Agreement and Plan of Merger (Schneider William P)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of of, the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of up to the point the Indemnifying Party assumed such participation or assumptioncontrol. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defense). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a -62- reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without may make such payment with the written consent of the Indemnifying Party and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Aviation Group Inc
Third Party Claims. With respect to any In the case of a Third Party Claim, the each Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of the Claim. If any such Third Indemnifying Party Claim andelects to assume such control, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless any such Indemnifying Party consents to the retention of such counsel at its own expense and shall have the right or unless named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the any action or proceeding include both such Indemnifying Party and the Indemnified Party shall be retained and a representation of both such Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). The Indemnified Party shall cooperate with any such Indemnifying PartyParty as to permit such Indemnifying Party to conduct such negotiation, settlement and defense and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow such Indemnifying Party access on reasonable notice and take copies of all such documents and require its personnel to provide such statements as such Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If the Indemnifying Party, having elected to assume such controlcontrol of the negotiation, settlement or defense of the Third Party Claim, any Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defense with reasonable timediligence, the then such Indemnified Party shall be entitled to assume such control and the such Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zim Corp)
Third Party Claims. With respect to any Claim for indemnification related to a claim brought by a Third Party (a “Third Party Claim”) the Indemnifying Party shall twenty (20) days (or less if the nature of the Third Party Claim requires) from the date on which the Indemnifying Party receives notice of a Third Party Claim to notify the Indemnified Party that it will assume the defense of the Claim at its own expense and, in the event the Indemnifying Party assumes control of the defense, the Indemnifying Party shall have not be liable to the right, at its own expense, Indemnified Party for any fees of any other counsel or other expenses in connection with the defense of such Third Party Claim. If the Indemnifying Party elects to participate in or assume control of the negotiation, settlement or defence defense of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such controlClaim, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to monitor and participate in the negotiation, settlement or defence defense of such that Third Party Claim at and to retain counsel to act on its own expense behalf, and the fees and disbursements of that counsel shall have be paid by the right to disagree on reasonable grounds with the selection and retention of counselIndemnified Party. Notwithstanding anything contained in this Agreement, in which case counsel reasonably satisfactory to the Indemnifying Party and shall not consent to the entry of any judgment or enter into any settlement except with the prior written consent of the Indemnified Party which consent shall not be retained by the Indemnifying Partyunreasonably withheld. If the Indemnifying Party, having elected to assume such controlcontrol of the negotiation, thereafter settlement or defense of the Claim, fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence defense of any Third Party the Claim, the Indemnifying Party shall not settle . If any Third Party Claim without is of a nature that the written consent Indemnified Party is required by any Legal Requirement to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make that payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, reimburse the Indemnified Party for that if any such consent payment unless the Indemnified Party is not obtained for entitled to indemnification under this Agreement and subject to the limitations set forth in Section 5.13. If the amount of any reasonliability of the Indemnified Party under the Third Party Claim in respect of which that payment was made, liability on as described in the part of other preceding sentence, is finally determined to be less than the amount that was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of the difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With respect If a claim made pursuant to Section 9.3 arises out of the claim of any Third third party, or if there is any claim against a third party available by virtue of the circumstances relating thereto, the Indemnifying Party Claimshall have thirty (30) days after receipt of the notice referred to in Section 9.3 to notify the Indemnified Party that it elects to conduct and control such action. If the Indemnifying Party does not give the foregoing notice, the Indemnified Party shall have the right to defend, contest and, subject to the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, settle or compromise such action in the exercise of its reasonable discretion, and the Indemnifying Party shall, upon request from the Indemnified Party, promptly pay to such Indemnified Party, in accordance with the other terms hereof, the amount of any Losses for which indemnification is provided hereunder. If the Indemnifying Party gives the foregoing notice, the Indemnifying Party shall have the rightright to undertake, conduct and control, through counsel of its own choosing and at its own sole expense, to participate in or assume control of the negotiation, conduct and settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, action and the Indemnified Party shall cooperate with the Indemnifying Party in connection therewith; provided, however, that (a) the Indemnifying Party shall not, without the consent of the affected Indemnified Party, enter into any settlement the effect of which is to create or impose any lien upon any of the properties or assets of the Indemnified Party; (b) the Indemnifying Party shall have not consent to any settlement that does not include as an unconditional term thereof the right giving of a complete release from liability with respect to such action to the Indemnified Party; (c) the Indemnifying Party shall not enter into any settlement the effect of which is to permit any injunction, declaratory judgment or other nonmonetary relief to be entered against the Indemnified Party; (d) the Indemnifying Party shall permit the Indemnified Party to participate in such conduct or settlement through counsel chosen by the negotiationIndemnified Party, settlement or defence with the fees and expenses of such Third counsel borne by the Indemnified Party Claim at its own expense and shall have the right unless under then applicable standards of professional conduct a conflict would exist, or be reasonably foreseeable to disagree on reasonable grounds with the selection and retention of counselarise, in which case counsel reasonably satisfactory to between the Indemnifying Party and the Indemnified Party in which event such fees and expenses of such counsel shall be retained borne by the Indemnifying Party. If , but under no circumstance shall the Indemnifying Party, having elected Party be required to assume pay the expenses of more than one such control, thereafter fails to defend any separate counsel in connection with such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control claim other than separate local counsel; and (e) the Indemnifying Party shall be bound by agree promptly to reimburse the results obtained Indemnified Party for the full amount of any Losses resulting from such action (except for expenses borne by the Indemnified Party with respect pursuant to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of clause (d) hereof) incurred by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained including reasonable fees and expenses of counsel for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.Indemnified Party. 9.5
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own their expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory to or unless the named parties of any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on reimburse the part of other Indemnifying Party shall be limited for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount that was paid by the Indemnifying Party to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Purchase and Sale Agreement (XML Global Technologies Inc)
Third Party Claims. With (a) The Indemnifying Party shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within 30 days of receipt of a Third Party Claim Notice from the Indemnified Party with respect to a Third Party Claim, to elect to conduct and control, at the expense of the Indemnifying Party and through counsel of its choosing that is reasonably acceptable to the Indemnified Party, the defense of such Third Party Claim, and the Indemnifying Party may compromise or settle such Third Party Claim; provided, however, that the Indemnifying Party shall give the Indemnified Party prior written notice of any proposed compromise or settlement and shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), consent to or enter into any compromise or settlement that commits the Indemnified Party to make an admission of liability or to take, or to forbear to take, any action or does not provide for a full and complete written release by the applicable third party of the Indemnified Party. No Indemnified Party may compromise or settle any Third Party Claim for which it is seeking indemnification hereunder without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. No Indemnifying Party may consent to the entry of any judgment that does not relate solely to monetary damages arising from any such Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned). If the Indemnifying Party elects to control and conduct the defense of any Third Party Claim, then the Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of such Third Party Claim through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party. If the Indemnifying Party elects not to control or conduct the defense of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, nevertheless shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense of any Third Party ClaimClaim and, the Indemnified Party shall have the exclusive right at its own expense, to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control employ counsel of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any its own choosing for such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountpurpose.
Appears in 1 contract
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc)
Third Party Claims. With respect to If an Indemnified Party shall receive notice of any Proceeding, audit, claim, demand or assessment (each, a “Third Party Claim”) against it which may give rise to a claim for Loss under this Article VIII, the Indemnified Party shall give the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence prompt written notice of such Third Party Claim andstating in reasonable detail the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such event, the right of indemnification is claimed or arises. The Indemnifying Party shall reimburse be entitled to control the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim through counsel of its choice at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to provided that the Indemnifying Party and acknowledges its responsibility to indemnify the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to for such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of so undertakes any such defense against a Third Party Claim, the Indemnified Party may participate in such defense at its own expense. The Indemnified Party shall have cooperate with the exclusive right Indemnifying Party in such defense and make available to contestthe Indemnifying Party, settle at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or pay under the amount claimedIndemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Whether If the Indemnifying Party does not undertake the defense of any such claim or proceeding, the Indemnified Party shall not pay, or permit to be paid, any part of such Third Party Claim unless the Indemnifying Party consents in writing to such payment, such consent not to be unreasonably withheld, or unless the Indemnifying Party withdraws from the defense of such Third Party Claim Liability or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnified Party for such Third Party Claim. If the Indemnifying Party assumes control the defense of any such claims or proceeding pursuant to this Section 8.6, the Indemnifying Party shall have the power and authority to settle or consent to the entry of judgment in respect of such claim or proceeding without the consent of the negotiationIndemnified Party if the judgment or settlement results only in the payment by the Indemnifying Party of money damages and includes a release of the Indemnified Party from any and all liability thereunder, settlement or defence of any Third Party Claimand, in all other events, the Indemnifying Party shall not settle consent to the entry of judgment or enter into any Third settlement in respect of a Third-Party Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.Claim.
Appears in 1 contract
Samples: Share Purchase Agreement
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred expenses, excluding attorney fees, as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have expense. If the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained by and a representation of both the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, and the Indemnified Party shall by the same counsel would be entitled inappropriate due to assume the actual or potential differing interests between them (such control and as the availability of different defences), the Indemnifying Party shall be bound by responsible for the results obtained fees and expenses of the counsel retained by the Indemnified Party. If any Third Party Claim is of a nature such that the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, to make a payment to any person (a “Third Party”) with respect to such the Third Party Claim. If Claim before the Indemnifying Party fails to assume control completion of settlement negotiations or related legal proceedings, as the defence of any Third Party Claimcase may be, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch a payment was made, howeveras finally determined, that if any such consent is not obtained for any reason, liability on less than the part of other amount which was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With respect to any (1) In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol upon notice to the Indemnified Party, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any Share Purchase Agreement action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained by and a representation of both the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). The Indemnified Party shall be entitled to assume such control and cooperate with the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect so as to such Third Party Claim. If permit the Indemnifying Party fails to assume control of conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not allow the Indemnifying Party assumes control access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Share Purchase Agreement (DealerTrack Holdings, Inc.)
Third Party Claims. With If any Indemnified Party receives written notice of the assertion or commencement of any Action or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party, the Indemnified Party shall give the Indemnifying Party prompt written notice thereof (a “Claim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations. Such Claim Notice shall describe the Third Party Claim in reasonable detail, shall include a copy of all papers served with respect to such Third Party Claim, if any, and any other documents reasonably necessary (as determined by the Indemnified Party) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in or, by giving written notice within ten (10) Business Days of receipt of a Third Party Claim, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided, that such notice contains confirmation that the Indemnifying Party has agree to indemnify the Indemnified Party (subject to the limitation on indemnification set forth herein) for the Losses arising out of or resulting from the Third Party Claim of which it is assuming the right to conduct and control the defense thereof. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have sole control over, the defense or settlement of any claim if: (i) such claim is part of an Action to which the Indemnifying Party is also a party and the Indemnified Party is advised by counsel that a conflict exists as a result of the Indemnifying Party’s control over such proceedings, (ii) such Third Party Claim seeks injunctive or other equitable relief against the Indemnified Party, (iii) the Third Party Claim relates to or arises in connection with any governmental proceeding, action, indictment, allegation or investigation in respect of the business of Buyer or their respective Affiliates, (iv) the Third Party Claim involves liabilities that are reasonably expected to exceed the Indemnity Escrow Amount, (v) the Indemnifying Party failed or is failing to reasonably prosecute or defend such Third Party Claim, or (vi) such claim involves any customer, supplier, distributor or other material business relation of Buyer or its Affiliates. If the Indemnifying Party has validly made such election, the Indemnified Party shall have the right, at its own cost and expense, to participate in or assume control the defense of the negotiation, settlement or defence of such any Third Party Claim and, in such event, with counsel selected by it subject to the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionright to control the defense thereof. If the Indemnifying Party elects not to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement compromise or defence of defend such Third Party Claim at or fails to promptly notify the Indemnified Party in writing of its own expense and shall have the right election to disagree on reasonable grounds with the selection and retention of counseldefend as provided in this Agreement, in which case counsel reasonably satisfactory to the Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the The Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by cooperate with each other in all reasonable respects to ensure the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence proper and adequate defense of any Third Party Claim, including making available Books and Records and other information relating to such Third Party Claim and furnishing employees and representatives as may be reasonably necessary for the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control preparation of the negotiation, settlement or defence defense of any such Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such the Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a “Third Party”) with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, that if any such consent is not obtained for any reason, liability on less than the part of other amount which was paid by the Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s 's reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the factual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent is of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any a nature such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.that:
Appears in 1 contract
Third Party Claims. With respect If any Indemnified Party receives written notice of the assertion or commencement of any Proceeding or other legal action made or brought by any Person who is not a party to any this Agreement or an Affiliate of a party to this Agreement or a representative of the foregoing (a “Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of ”) against such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with give the Indemnifying Party prompt written notice thereof (a “Claim Notice”). The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations. Such Claim Notice shall describe the Third Party Claim in reasonable detail, shall include a copy of all papers served with respect to such Third Party Claim, if any, and any other documents reasonably necessary (as determined by the Indemnified Party) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in or, by giving written notice within ten (10) Business Days of receipt of a Third Party Claim, to assume the negotiation, settlement or defence defense of such any Third Party Claim at its own the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel; provided, that such notice contains confirmation that the Indemnifying Party has agreed to indemnify the Indemnified Party (subject to the limitation on indemnification set forth herein) for the Damages arising out of or resulting from the Third Party Claim of which it is assuming the right to conduct and control the defense thereof. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 7.6, it shall have the right to disagree on reasonable grounds with the selection and retention of counseltake such action as it deems necessary to avoid, in which case counsel reasonably satisfactory dispute, defend, appeal or make counterclaims pertaining to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable timein the name and on behalf of the Indemnified Party; provided, however, that the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to assume such have sole control and over, the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense or settlement of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.claim if:
Appears in 1 contract
Samples: Asset Purchase Agreement
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party the Claim of Indemnity and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any third party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from such third party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. i. With respect to any Third Party ClaimClaims as to which the Indemnified Party intends to seek indemnity from Nemelka, the Indemnifying Party Nemelka shall have the right, at its own expensehis expense and at his election, to participate in or assume control of the negotiation, settlement and defense of the Claim through counsel of his choice; provided, however, that Nemelka shall have no right to assume control of the negotiation, settlement or defence defense of any Third Party Claim (i) insofar as such Third Party Claim andwould have a material adverse effect on the Indemnified Party if resolved adversely to the interests of the Indemnified Party, or seeks as a remedy against the Indemnified Person any injunctive or other equitable relief or criminal penalty, and (ii) unless Nemelka acknowledges in such eventwriting to the Indemnified Party his liability hereunder to indemnify, the Indemnifying Party shall hold harmless and reimburse the Indemnified Party in accordance herewith for all Losses arising in connection with such Third Party Claim. The election of Nemelka to assume such control shall be made within thirty (30) days of receipt of notice of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of Third Party Claim, failing which Nemelka shall be deemed to have elected not to assume such participation or assumptioncontrol. If the Indemnifying Party Nemelka elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in be informed and consulted with respect to the negotiation, settlement or defence defenses of such Third Party Claim at and to retain counsel to act on its own expense behalf, but the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless Nemelka consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to the Indemnifying Party any action or proceeding include both Nemelka and the Indemnified Party shall be retained and a representation of both Nemelka and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying PartyNemelka, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable period of time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party Nemelka shall be bound by the results obtained by the Indemnified Party with respect to such the Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Indemnification Agreement (Rub Music Enterprises, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the a right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interest between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Third Party Claims. With (a) The Indemnifying Party under this Article VIII shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within thirty (30) days of receipt of notice of a Third Party Claim from the Indemnified Party with respect thereto, to assume the conduct and control, at the expense of the Indemnifying Party and through counsel of its choosing that is reasonably acceptable to the Indemnified Party, any Third Party Claim, and the Indemnifying Party may compromise or settle the same; provided, that the Indemnifying Party shall give the Indemnified Party advance written notice of any proposed compromise or settlement and shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), consent to or enter into any compromise or settlement that commits the Indemnified Party, to take, or to forbear to take, any action or does not provide for a full and complete written release by the applicable third party of the Indemnified Party. No Indemnified Party may compromise or settle any Third Party Claim for which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld). No Indemnifying Party may consent to the entry of any judgment that does not relate solely to monetary damages arising from any such Third Party Claim without the prior written consent of the Indemnified Party. The Indemnifying Party shall permit the Indemnified Party to participate in, but not control, the defense of any such Third Party Claim through counsel chosen by the Indemnified Party; provided, that the fees and expenses of such counsel shall be borne by the Indemnified Party. If the Indemnifying Party elects not to control or conduct the defense of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, nevertheless shall have the right to participate in the negotiation, settlement or defence defense of such any Third Party Claim and, at its own expense and shall have the right expense, to disagree on reasonable grounds with the selection and retention employ counsel of counsel, in which case counsel reasonably satisfactory to the its own choosing for such purpose. The Indemnifying Party and shall permit the Indemnified Party to participate in, but not control, the defense of any such Third-Party Claim through counsel chosen by the Indemnified Party, and the fees and expenses of such counsel shall be retained borne by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
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Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party the Claim and, in such eventthat case, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such that participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such the Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of that counsel shall have be paid by the right to disagree on reasonable grounds with the selection and retention of counselIndemnified Party, in which case counsel reasonably satisfactory to unless the Indemnifying Party and consents to the Indemnified Party shall be retained by the Indemnifying Partyretention of that counsel. If the Indemnifying Party, having elected to assume such that control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect resect to such Third Party Claim. If the Indemnifying Party fails or refuses to assume control defend a Third Party Claim at its own expense, then the Indemnified Party shall be entitled to recover, all reasonable costs and expenses of the defence of any defending that Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimedincluding reasonable attorneys fees and expenses. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle If any Third Party Claim without is of a nature where the written consent Indemnified Party is required by applicable law to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party may make that payment and the Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for that payment. If the amount of any liability of the Indemnified Party under the Third Party Claim for which consent shall not be unreasonably withheld or delayed; providedpayment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of that difference to the Indemnifying Party.
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Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-of pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If The Indemnified Party shall cooperate in a reasonable manner with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defense and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defense of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defense with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control at the cost of the Indemnifying Party and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by applicable law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to a material amount of products or services or (B) a Third Party Claim relating to any contract which is necessary to the ongoing operations of a material portion of the Indemnified Party’s business operations or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential contract, to make a payment to any Person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence Indemnified Party under the Third Party Claim in respect of any which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, promptly after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If such a payment, by resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any then such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amountand finally settled by binding arbitration from which there shall be no appeal.
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Third Party Claims. With respect Promptly after the receipt by any party hereto ------------------ of notice of any claim, action, suit or proceeding (other than a claim, action, suit or proceeding against any of the Companies or the Subsidiaries) by any person who is not a party to any Third this Agreement (collectively, an "Action") which is subject to indemnification hereunder, such party (the "Indemnified Party") shall give reasonable written notice to the party from whom indemnification is claimed (the "Indemnifying Party"). At the sole expense and liability of the Indemnifying Party Claimand within a reasonable time after the giving of such notice by the Indemnified Party, the Indemnifying Party shall have shall: (i) admit or decline in writing to the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such eventIndemnified Party, the Indemnifying Party shall reimburse Party's liability to the Indemnified Party for all such Action, (ii) notify the Indemnified Party in writing of the Indemnifying Party's intention to assume the defense thereof, (iii) post an indemnity or similar bond (in form and substance satisfactory to the Indemnified Party’s reasonable out-of-pocket expenses incurred ), in both cases for the full amount (including interest and penalties) for which the Indemnified Party may be liable as a result of such participation Action or assumptionprovide other evidence satisfactory to the Indemnified Party of the Indemnifying Party's ability to pay such amount in full, and (iv) retain legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, in defending, compromising or settling any such Action in any manner that such party reasonably may request. If the Indemnifying Party elects to assume such control, so assumes the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimAction, the Indemnified Party shall have the exclusive right to contestemploy separate counsel and to participate in (but not control) the defense, compromise or settlement thereof, but the fees and expenses of such counsel shall be to the expense of the Indemnified Party. No Indemnified Party shall settle or pay compromise any such Action for which it is entitled to indemnification hereunder without the amount claimed. Whether or not prior written consent of the Indemnifying Party assumes control of the negotiationParty, settlement or defence of any Third Party Claim, unless the Indemnifying Party shall not settle any Third Party Claim without have failed, after reasonable notice thereof, to undertake control of such Action in the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other manner provided above in this Section. No Indemnifying Party shall be limited settle or compromise any such Action in which any relief other than the payment of money damages is sought against any Indemnified Party unless the Indemnified Party consents in writing to the proposed settlement amountsuch compromise or settlement.
Appears in 1 contract
Samples: Stock Purchase And (Tele Communications International Inc)
Third Party Claims. With respect As used herein, “Indemnified Party” shall refer either to Buyer or the Allianz Entities, as applicable, and “Indemnifying Party” shall refer to the party obligated hereunder to indemnify such Indemnified Party. In the event that any of the Indemnified Parties is made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party, or in the event that a claim is made by any third party against any of the Indemnified Parties, for any matter the liability, costs or expenses of which are Losses for which the Indemnified Party is entitled to indemnification by the Indemnifying Party pursuant to Section 11.02 above (any such third party claim, action or proceeding being referred to as a “Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control”), the Indemnified Party shall cooperate with give the Indemnifying Party prompt written notice thereof (a “Third Party Claim Notice”), including, in reasonable detail, the identity of the third party and the nature and amount of the Third Party Claim. The failure to give such notice shall not affect any Indemnified Party’s ability to seek reimbursement unless such failure has materially prejudiced the Indemnifying Party’s ability to defend successfully a Third Party Claim. The Indemnifying Party shall be entitled, shall have upon written notice delivered to the right Indemnified Party, to participate in control the negotiation, defense and settlement or defence of such Third Party Claim at its own expense Claim, subject to the further provisions of this Section 11.03 and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to provided that the Indemnifying Party diligently contests and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to defends such Third Party Claim. If the Indemnifying Party fails has so elected to assume control the defense and settlement of the defence of any such Third Party Claim, the Indemnified Party shall have the exclusive right be entitled at any time, at its own cost and expense (which expense shall not constitute a Loss), to contest, settle or pay the amount claimed. Whether or not participate in such defense and settlement and to be represented by attorneys of its own choosing; and if the Indemnifying Party assumes does not so elect to control the defense and settlement of the negotiation, settlement or defence of any such Third Party Claim, the Indemnifying Party shall not settle be entitled at any time, at its own cost and expense, to participate in such defense and settlement and to be represented by attorneys of its own choosing. The Indemnified Party and the Indemnifying Party shall in any event cooperate with one another in the defense of any Third Party Claim and provide to the other such documents and information as are reasonably requested in connection therewith. Neither the Indemnified Party nor the Indemnifying Party may concede, settle or compromise any Third Party Claim as to which the other party will have any liability without the prior written consent of the Indemnified Partysuch other party, which consent shall not be unreasonably withheld withheld, delayed or delayed; providedconditioned. Notwithstanding the foregoing, however(i) if a Third Party Claim seeks equitable relief or (ii) if the subject matter of a Third Party Claim relates to the ongoing business of any of the Indemnified Parties, that which Third Party Claim, if decided against any of the Indemnified Parties, would materially adversely affect the ongoing business of any of the Indemnified Parties, then the Indemnified Parties shall have the right to control the defense and settlement of such consent is not obtained for any reasonclaim, liability on but the part of other Indemnifying Party shall not be limited to the proposed liable for any Losses arising from any settlement amountthereof effected without its consent, which consent shall not be unreasonably withheld.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s 's reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to a Third Party before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have may make such payment and the exclusive right 55 - 50 - Indemnifying Party shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any Loss suffered or incurred by the Indemnified Party in respect of a Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to contestthe Indemnified Party, settle or the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount claimedof such difference to the Indemnifying Party. Whether If the amount of any Loss suffered or not incurred by the Indemnified Party in respect of a Third Party Claim in respect of which such payment was made, as finally determined, is greater than the amount which was paid by the Indemnifying Party assumes control of to the negotiation, settlement or defence of any Third Party ClaimIndemnified Party, the Indemnifying Party shall not settle any Third Party Claim without shall, forthwith following such final determination, pay the written consent amount of such difference to the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Share Purchase Agreement (First Union Real Estate Equity & Mortgage Investments)
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party Claim the claim or Legal Proceeding and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to Indemnified Party unless the Indemnifying Party and consents to the Indemnified Party shall be retained by the Indemnifying Partyretention of such counsel at its expense. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim and shall solely bear all reasonable expenses associated with the defense of such Third Party Claim. If the Indemnifying either Party fails to assume control makes a payment, resulting in settlement of the defence of any Third Party Claim, which precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control are unable to agree whether such payment was unreasonable in the circumstances having regard to the amount and merits of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any then such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited referred to the proposed settlement amountand finally settled by binding arbitration in accordance with Section 10.9.
Appears in 1 contract
Samples: Asset Purchase Agreement (Unity First Acquisition Corp)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Share Purchase Agreement (International Menu Solutions Corp)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall continue to have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences), in which case the fees and disbursements of such counsel shall be shared 50/50 between the Indemnifying Party and Indemnified Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party. If the Indemnifying Party elects to assume such control, the Indemnified Party and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any conduct such negotiation, settlement or defence of such Third Party Claim within a with reasonable timediligence, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of assumes the defence of any a Third Party Claim, it shall be deemed to have acknowledged its obligation to indemnify and hold the Indemnified Party shall have harmless with respect to the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without in accordance with the written consent terms of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountArticle 8.
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Third Party Claims. With respect to any Third Party Claim, the Indemnified Party shall promptly (and in any event within fifteen (15) Business Days after receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing; provided, however, that failure to give such notice shall not limit the right of an Indemnified Party to recover hereunder from any Indemnifying Party except to the extent that such Indemnifying Party suffers any material prejudice or material harm with respect to such claim as a result of such. After receiving such notice, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim within thirty (30) days of receiving such notice and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s commercially reasonable out-of-pocket expenses incurred as a result prior to the assumption by the Indemnifying Party of the control of the negotiation, settlement or defence of such participation or assumptionThird Party Claim. If the Indemnifying Party elects to assume such control, the Indemnified Party shall reasonably cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party Party, each acting reasonably, shall be retained by the Indemnifying Party. The Indemnifying Party shall have the right to settle any Third Party Claim on the condition that: (1) it pays the monetary amounts to settle such Third Party Claim and (ii) the Indemnified Party is released from any liability relating to the Third Party Claim. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Share Purchase Agreement
Third Party Claims. With If a claim by a third party is made against any party or parties hereto and the party or parties against whom said claim is made intends to seek indemnification with respect to any Third Party Claimthereto under Subsections 4.1 or 4.2, the Indemnifying Party party or parties seeking such indemnification shall promptly notify the indemnifying party or parties, in writing, of such claim; provided, however, that the failure to give such notice shall not affect the rights of the indemnified party or parties hereunder unless such failure materially and adversely affects the indemnifying party or parties. The indemnifying party or parties shall have 10 days after said notice is given to elect, by written notice given to the rightindemnified party or parties, to undertake, conduct and control, through counsel of their own choosing (subject to the consent of the indemnified party or parties, such consent not to be unreasonably withheld) and at its own their sole risk and expense, to participate in or assume control of the negotiation, good faith settlement or defence defense of such Third Party Claim andclaim, in such event, and the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation indemnified party or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party parties shall cooperate with the Indemnifying Partyindemnifying parties in connection therewith; provided: the indemnified party or parties shall be entitled to participate in such settlement or defense through counsel chosen by the indemnified party or parties, provided that the fees and expenses of such counsel shall be borne by the indemnified party or parties. So long as the indemnifying party or parties are contesting any such claim in good faith, the indemnified party or parties shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the indemnified party or parties shall have the right to participate pay or settle any such claim at any time, provided that in such event they shall waive any right of indemnification therefor by the negotiationindemnifying party or parties. If the indemnifying parties do not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the indemnifying parties fail to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the indemnified party or defence of such Third Party Claim at its own expense and parties shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claim, the Indemnified Party shall have the exclusive right to contest, settle or pay compromise the amount claimed. Whether or not claim at their exclusive discretion, at the Indemnifying Party assumes control risk and expense of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amountindemnifying parties.
Appears in 1 contract
Samples: Stock Purchase Agreement (Synergistic Holding Corp)
Third Party Claims. With respect to any Third Party ClaimClaim (including without limitation any assessment or reassessment by a Tax Authority), the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to monitor, but not participate in the negotiation, settlement or defence of of, such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If Notwithstanding the foregoing, if the claimant seeks injunctive or other equitable relief, the proceeding relates to or arises in connection with any criminal proceeding, action, indictment, allegation, or investigation, or the proceeding involves a customer or supplier of the Business, the Vendor, the Purchaser or API, or (B) if the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party Claimprovided, however, that the Indemnified Party shall have the exclusive right to contest, not settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of compromise any Third Party Claim, the Indemnifying Party shall not settle any such Third Party Claim without the prior written consent of the Indemnified Party, Indemnifying Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount).
Appears in 1 contract
Third Party Claims. With In the case of any Claim by or in respect to of any Person other than the Parties (a "Third Party Claim") for which indemnification is sought, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, Shoreline shall have the right to: (a) conduct and control any proceedings or negotiations; (b) perform and control or direct the performance of activities required; (c) take all other steps to participate in the negotiation, settlement settle or defence of such Third Party Claim at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within (provided, that Shoreline shall not settle any such Third Party Claim without the consent of Klondex (which consent shall not be unreasonably withheld) unless the settlement includes a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party complete release of Klondex with respect to the Third Party Claim); and (d) employ counsel to contest any such Third Party Claim. Notwithstanding an election by Shoreline to assume the defense of such Third Party Claim, Klondex shall have the right to employ separate counsel and to participate in the defense of such Third Party Claim, and Klondex shall bear the fees, costs and expenses of such separate counsel. Shoreline shall, within 30 days after delivery of the Notice of Claim to Shoreline, notify Klondex of Shoreline’s intention as to the conduct and control of the defense of such Third Party Claim. Until Klondex has received notice of Shoreline’s election whether to defend any Third Party Claim, Klondex shall take reasonable steps to defend (but may not settle) such Third Party Claim. If the Indemnifying Party fails Shoreline shall decline to assume control the defense of any such Third Party Claim, or Shoreline shall fail to notify Klondex within 30 days after delivery of the defence Notice of any Claim of Shoreline’s election to defend such Third Party Claim, Klondex shall be entitled to defend against such Third Party Claim (provided, that Klondex shall not settle such Third Party Claim without the consent of Shoreline, which consent shall not be unreasonably withheld). Regardless of which Party assumes, or is entitled to conduct, pursuant to this Section 9.3, the defense of a Third Party Claim, the Indemnified Parties agree (A) that neither Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified other Party, which consent shall not be unreasonably withheld withheld; (B) to take reasonable steps to defend any Third Party Claim; (C) to cooperate fully with one another in connection therewith; (D) to keep each other reasonably informed of the status of any Third Party Claim and any related legal proceeding; and (E) to take no action or delayed; provided, however, that if make any such consent is admissions or statements not obtained for required by Law which would adversely affect the defense of any reason, liability on the part of other Indemnifying Third Party shall be limited to the proposed settlement amountClaim.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by Applicable Law to make a payment to any person (a "Third Party") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not may make such payment and the Indemnifying Party assumes control of the negotiationshall, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which consent shall not be unreasonably withheld or delayed; providedsuch payment was made, howeveras finally determined, is less than the amount that if any such consent is not obtained for any reason, liability on was paid by the part of other Indemnifying Party shall be limited to the proposed settlement amountIndemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party.
Appears in 1 contract
Samples: Acquisition Agreement (Mitel Corp)
Third Party Claims. With If any Indemnified Party receives notice of the assertion or commencement of any action, suit, claim or other Legal Proceeding made or brought by any Person who is not a Party to this Agreement or an Affiliate of a Party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except to the extent that such failure to notify materially and adversely prejudices the Indemnifying Party, and then, only to the extent of such prejudice. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail and indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in or, by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own recognized and reputable counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that (i) prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible (with no reservation of any rights) for all Losses relating to such Third Party Claim, and (ii) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) if (A) such Third Party Claim involves criminal liability, (B) such Third Party Claim involves a customer or supplier of the Indemnified Party or its business or if an adverse determination with respect to such Third Party Claim could reasonably be expected to be materially detrimental to or injure the Indemnifying Party’s reputation or business prospects, (C) such Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or its business and the Indemnified Party reasonably determines that such injunction or equitable relief would materially and adversely affect the Indemnified Party or its business, (D) in the reasonable opinion of counsel to the Indemnified Party there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived with respect to such Third Party Claim, or (E) the Losses relating to such Third Party Claim would reasonably be expected to exceed the maximum amount that the Indemnified Party would be entitled to recover under this Article VIII. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(c), it shall have the Indemnifying right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in or assume control the defense of the negotiation, settlement or defence of such any Third Party Claim and, in such event, with counsel selected by it subject to the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumptionright to control the defense thereof. If the Indemnifying Party elects not to assume pay, compromise or defend such controlThird Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party shall cooperate with the Indemnifying Partymay, shall have the right subject to participate in the negotiationSection 8.05(c), settlement pay, compromise or defence of defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim at its own the sole cost and expense and shall have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense of any Third Party Claim, including making available (subject to the Indemnified provisions of Section 6.03) records relating to such Third Party shall have Claim and furnishing to the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying defending Party assumes control of management employees of the negotiation, settlement or defence non-defending Party as may be reasonably necessary for the preparation of any the defense of such Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Samples: Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Third Party Claims. With respect All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedures. An Indemnified Party shall give prompt (but in any Third event within thirty (30) days) written notification to the Indemnifying Party Claimof the commencement of any Action relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party; provided, however, that failure to notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to the Indemnified Party, except to the extent that the Indemnifying Party is prejudiced by such failure. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party claim and the amount of the Damages claimed. Within thirty (30) days after delivery of such notification, the Indemnifying Party shall have may, upon written notice thereof to the rightIndemnified Party, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all Action or claim with counsel reasonably satisfactory to the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to does not assume control of such controldefense within thirty (30) days after the notice of such claim, the Indemnified Party shall cooperate with against whom such claim has been made may, without prejudice to its right, if any, of indemnification hereunder and upon further notice to the Indemnifying Party, shall have undertake the right to participate in the negotiationdefense, compromise or settlement or defence of such Third Party Claim claim on behalf of and for the account and risk, and at its own expense and shall have the right to disagree on reasonable grounds with the selection and retention expense, of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected subject to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, (i) the Indemnified Party shall be entitled to assume such control and right of the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control the defense of such claim at any time prior to settlement, compromise or final determination thereof and (ii) in the defence case of any Third Party Claimcompromise or settlement, the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the prior written consent of the Indemnified Indemnifying Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed. If, pursuant to the preceding sentence, the Indemnified Party so contests, defends, litigates or settles a claim for which it is entitled to indemnification hereunder, the Indemnified Party shall, subject to any defense that the Indemnifying Party may have that it is not obligated to provide indemnity, be reimbursed by the Indemnifying Party for the reasonable attorneys' fees and other expenses of contesting, defending, litigating and settling the claim that are incurred from time to time, promptly following the presentation to the Indemnifying Party of itemized bills for such reasonable attorneys' fees and other expenses. The Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Action or claim, the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith shall be considered "Damages" for purposes of this Agreement; provided, however, that if in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such Action or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto, and the Parties shall use commercially reasonable efforts to avoid production of confidential information and to preserve any applicable attorney-client or work-product privileges. If the Indemnifying Party assumes the defense of an Action or claim, the Indemnified Party shall agree to any settlement of such consent is Action or claim that the Indemnifying Party may recommend that by its terms (or pursuant to a binding commitment of the Indemnifying Party) obligates the Indemnifying Party to pay the full amount of any Damages payable in connection with such settlement; provided, however, that such settlement would not obtained for result in or reasonably be expected to lead to (i) the imposition of an Order that would restrict the future activity or conduct of the Indemnified Party or any reasonof its Affiliates, (ii) a finding or admission of a violation of law by the Indemnified Party or any of its Affiliates, (iii) injunctive or other equitable relief against the Indemnified Party or (iv) any liability or creation of any financial or other obligation on the part of other the Indemnified Party. The Indemnifying Party shall be limited not agree to any settlement of such Action or claim that does not include a complete release of the proposed settlement amountIndemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence defense of such Third Party the Claim of Indemnity and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence defense of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named Parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defenses). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence of any Third Party ClaimClaim is of a nature such that the Indemnified Party is required by applicable law to make a payment to any third party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings (the "Anticipated Payment"), the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimedmake such payment. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party ClaimIn such case, the Indemnifying Party shall not settle pay to the Indemnified Party an amount equal to the Anticipated Payment, together with any additional amount of any liability of the Indemnified Party under the Third Party Claim without in respect of which the written consent Anticipated Payment was made, as finally determined, with interest accrued on the amount of the Indemnified PartyAnticipated Payment from the date of payment thereof, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability at the rate of the one year BOT as published on the part of other Indemnifying Party shall be limited Sole 24 Ore from time to the proposed settlement amounttime.
Appears in 1 contract
Third Party Claims. With The Indemnifying Party under this Article IX shall have the right, but not the obligation, exercisable by written notice to the Indemnified Party within thirty (30) days of receipt of a Third Party Claim Notice from the Indemnified Party with respect thereto, to assume conduct and control, at the expense of the Indemnifying Party and through counsel of its choosing that is reasonably acceptable to the Indemnified Party, any third party claim, action, suit or proceeding (a “Third Party Claim”), provided, however, that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of such Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party that is reasonably acceptable to the Indemnifying Party if (i) such Third Party Claim relates to or arises in connection with any criminal Legal Proceeding; (ii) such Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates; (iii) the Indemnified Party reasonably concludes, based on the advice of counsel, that there is an irreconcilable conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of such defense; or (iv) after assuming control of such defense, the Indemnifying Party withdraws from such defense or fails to diligently pursue and maintain such defense. If the Indemnifying Party is controlling the defense of a Third Party Claim, the Indemnifying Party may compromise or settle the same, provided that the Indemnifying Party shall have give the rightIndemnified Party advance notice of any proposed compromise or settlement and shall not, at its own expense, to participate in or assume control without the prior written consent of the negotiationIndemnified Party (which consent shall not be unreasonably withheld), consent to or enter into any compromise or settlement that commits the Indemnified Party to take, or defence to forbear to take, any action or does not provide for a full and complete written release by the applicable third party of the Indemnified Party. No Indemnified Party may compromise or settle any Third Party Claim for which it is seeking indemnification hereunder without the consent of the Indemnifying Party (which consent shall not be unreasonably withheld). No Indemnifying Party may consent to the entry of any judgment that does not relate solely to monetary damages arising from any such Third Party Claim and, in such event, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld). The Indemnifying Party shall reimburse permit the Indemnified Party for all to participate in, but not control, the defense of any such action or suit through counsel chosen by the Indemnified Party’s reasonable out-of-pocket , provided that the fees and expenses incurred as a result of such participation or assumptioncounsel shall be borne by the Indemnified Party. If the Indemnifying Party elects not to assume such controlcontrol or conduct the defense of a Third Party Claim, the Indemnified Indemnifying Party shall cooperate with the Indemnifying Party, nevertheless shall have the right to participate in the negotiation, settlement or defence defense of such any Third Party Claim and, at its own expense and expense, to employ counsel of its own choosing for such purpose. The Parties hereto shall have cooperate in the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to the Indemnifying Party and the Indemnified Party shall be retained by the Indemnifying Party. If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If the Indemnifying Party fails to assume control of the defence defense of any Third Party Claim, the Indemnified Party shall have the exclusive right with such cooperation to contest, settle or pay the amount claimed. Whether or not the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.include
Appears in 1 contract
Samples: Asset Purchase Agreement
Third Party Claims. With respect to any In the case of a Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of the Claim. If the Indemnifying Party elects to assume such Third Party Claim and, in such eventcontrol, the Indemnifying Party shall reimburse the Indemnified Party for all of the Indemnified Party’s reasonable 's out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the The Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim and to retain counsel to act on its behalf, provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel at its own expense and shall have or unless the right named parties to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel reasonably satisfactory to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and a representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If The Indemnified Party shall cooperate with the Indemnifying PartyParty so as to permit the Indemnifying Party to conduct such negotiation, settlement and defence and for this purpose shall preserve all relevant documents in relation to the Third Party Claim, allow the Indemnifying Party access on reasonable notice to inspect and take copies of all such documents and require its personnel to provide such statements as the Indemnifying Party may reasonably require and to attend and give evidence at any trial or hearing in respect of the Third Party Claim. If, having elected to assume such controlcontrol of the negotiation, settlement or defence of the Third Party Claim, the Indemnifying Party thereafter fails to defend any conduct such Third Party Claim within a negotiation, settlement or defence with reasonable timediligence, then the Indemnified Party shall be entitled to assume such control and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that (i) the Indemnified Party is required by Applicable Law or the order of any court, tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the reasonable view of the Indemnified Party acting in good faith and in a manner consistent with reasonable commercial practices, in respect of (A) a Third Party Claim by a customer relating to products or services supplied by the Business or (B) a Third Party Claim relating to any Contract which is necessary to the ongoing operations of the Business or any material part thereof in order to avoid material damage to the relationship between the Indemnified Party and any of its major customers or to preserve the rights of the Indemnified Party under such an essential Contract, to make a payment to any person (a "THIRD PARTY") with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, then the Indemnified Party may make such payment provided that it is made in a manner that does not constitute an admission of liability and that preserves all defences to the Third Party Claim and the Indemnifying Party fails to assume control shall, promptly after demand by the Indemnified Party, reimburse the Indemnified Party for such payment. If the amount of any liability of the defence of any Indemnified Party under the Third Party ClaimClaim in respect of which such a payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall have shall, promptly after receipt of the exclusive right to contestdifference from the Third Party, settle or pay the amount claimed. Whether or not of such difference to the Indemnifying Party assumes control of the negotiation, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party shall be limited to the proposed settlement amount.
Appears in 1 contract
Third Party Claims. With respect to any Third Party Claim, the Indemnifying Party shall have the right, at its own expense, to participate in or assume control of the negotiation, settlement or defence of such Third Party the Claim and, in such event, the Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified Party’s reasonable out-of-pocket expenses incurred as a result of such participation or assumption. If the Indemnifying Party elects to assume such control, the Indemnified Party shall cooperate with the Indemnifying Party, shall have the right to participate in the negotiation, settlement or defence of such Third Party Claim at and to retain counsel to act on its own expense behalf, provided that the fees and disbursements of such counsel shall have be paid by the right Indemnified Party unless the Indemnifying Party consents to disagree on reasonable grounds with the selection and retention of counsel, in which case such counsel reasonably satisfactory or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party shall be retained and the representation of both the Indemnifying Party and the Indemnified Party by the Indemnifying Partysame counsel would be inappropriate due to the actual or potential differing interests between them (such as the availability of different defences). If the Indemnifying Party, having elected to assume such control, thereafter fails to defend any such the Third Party Claim within a reasonable time, the Indemnified Party shall be entitled to assume such control control, and the Indemnifying Party shall be bound by the results obtained by the Indemnified Party with respect to such Third Party Claim. If any Third Party Claim is of a nature such that the Indemnified Party is required by applicable Legal Requirements to make a payment to any Third Party with respect to the Third Party Claim before the completion of settlement negotiations or related legal proceedings, as the case may be, the Indemnified Party may make such payment, up to $25,000 without the Indemnifying Party’s consent and over $25,000 with the Indemnifying Party’s consent and the Indemnifying Party fails shall, forthwith after demand by the Indemnified Party, reimburse the Indemnified Party for such payment, provided that: (i) any such payment shall be made on the basis that it is without prejudice to assume control either the Indemnified Party’s or the Indemnifying Party’s position vis-à-vis the Third Party Claim and (ii) the Indemnified Party first gives a written notice to the Indemnifying Party setting out the nature of the defence Claim in sufficient detail to enable the Indemnifying Party to reasonably satisfy itself that it would be responsible for the Claim pursuant to the provisions hereof. If the amount of any liability of the Indemnified Party under the Third Party Claim in respect of which such payment was made, as finally determined, is less than the amount which was paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, forthwith after receipt of the difference from the Third Party, pay the amount of such difference to the Indemnifying Party. If any payment pursuant to Section 16.8, resulting in settlement of the Third Party Claim, precludes a final determination of the merits of the Third Party Claim and the Indemnified Party shall have the exclusive right to contest, settle or pay the amount claimed. Whether or not and the Indemnifying Party assumes control of the negotiationare unable to agree whether such payment was required to be made, settlement or defence of any Third Party Claim, the Indemnifying Party shall not settle any Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed; provided, however, that if any such consent is not obtained for any reason, liability on the part of other Indemnifying Party dispute shall be limited submitted to the proposed settlement amountarbitration pursuant to Article 18.
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