Common use of Defense by Indemnitor Clause in Contracts

Defense by Indemnitor. Upon receipt of notice from the Indemnitee of a Claim by a Third Party (a “Third Party Claim”), the Indemnitor may elect to assume the defense of such Claim by providing counsel (such counsel subject to the reasonable approval of the Indemnitee) to defend the Indemnitee against the matter from which the Third Party Claim arose, at the Indemnitor’s sole cost, risk and expense. The Indemnitee shall cooperate, in all reasonable respects and at the Indemnitor’s sole cost, risk and expense, with the Indemnitor in the investigation, trial, defense and any appeal arising from the matter from which the Third Party Claim arose; provided, however, that the Indemnitee may (but shall not be obligated to) participate in (but not control) any such investigation, trial, defense and any appeal arising in connection with the Third Party Claim at its sole cost, risk and expense. If the Indemnitee elects 51 to so participate, the Indemnitor shall cooperate with the Indemnitee, and the Indemnitor shall deliver to the Indemnitee or its counsel copies of all pleadings and other information within the Indemnitor’s knowledge or possession reasonably requested by the Indemnitee or its counsel that is relevant to the defense of such Third Party Claim and that will not prejudice the Indemnitor’s position, claims or defenses. The Indemnitor shall have the right to elect to settle any Third Party Claim for monetary damages without the Indemnitee’s consent only if (i) the settlement includes a complete release of the Indemnitee without any admission of wrongdoing by the Indemnitee and without any restrictions on any future actions of the Indemnitee and (ii) with respect to Taxes for which the Company Stockholders are liable hereunder, such settlement would not be expected to affect the Tax liability of the Company or Parent for periods following the Closing. Any other settlement will be subject to the consent of the Indemnitee, which shall not be unreasonably withheld or delayed. The Indemnitor may not admit any liability of the Indemnitee or waive any of the Indemnitee’s rights without the Indemnitee’s prior written consent. If the subject of any Third Party Claim results in a judgment or settlement consistent with the terms of this Section 10.04(a) for which the Indemnitor is liable hereunder, the Indemnitor shall promptly pay such judgment or settlement.

Defense by Indemnitor. Upon receipt In connection with any claim giving rise to indemnity hereunder or resulting from or arising out of notice from the Indemnitee of a any Claim by a Third Party (Person who is not a “Third Party Claim”)party to this Agreement, the Indemnitor may elect at its sole cost and expense may, upon written notice to the Indemnitee, assume the defense of any such Claim by providing counsel (such counsel subject claim if the Indemnitor acknowledges to the reasonable approval Indemnitee in writing Indemnitee's obligation to indemnify the Indemnitee with respect to all elements of such claim, and thereafter diligently conducts the defense thereof with counsel of recognized standing reasonably acceptable to the Indemnitee) to defend the Indemnitee against the matter from which the Third Party Claim arose, at the Indemnitor’s sole cost, risk and expense. The Indemnitee shall cooperatebe entitled to employ counsel separate from counsel employed by the Indemnitor in any such action and to participate therein, but the fees and expenses of such counsel employed by the Indemnitee shall be at its expense (unless the Indemnitee reasonably determines there is a conflict between the Indemnitee and Indemnitor with respect to such action, in all reasonable respects which case such fees and expenses shall be at the Indemnitor’s sole cost, risk and 's expense, with the Indemnitor in the investigation, trial, defense and any appeal arising from the matter from which the Third Party Claim arose; provided, however, that the Indemnitee may (but shall not be obligated to) participate in (but not control) any such investigation, trial, defense and any appeal arising in connection with the Third Party Claim at its sole cost, risk and expense. If the Indemnitee elects 51 to so participate, the Indemnitor shall cooperate with the Indemnitee), and the Indemnitor shall deliver to the Indemnitee or its counsel copies of all pleadings and other information within the Indemnitor’s knowledge or possession reasonably requested by the Indemnitee or its counsel that is relevant to the defense retain control of such Third Party Claim and that will not prejudice the Indemnitor’s position, claims or defensesdefense. The Indemnitor shall have the right to elect to settle any Third Party Claim for monetary damages without the Indemnitee’s consent only if (i) the settlement includes a complete release of the Indemnitee without any admission of wrongdoing by the Indemnitee and without any restrictions on any future actions of the Indemnitee and (ii) with respect to Taxes for which the Company Stockholders are liable hereunder, such settlement would not be expected to affect the Tax liability of the Company or Parent for periods following the Closing. Any other settlement will be subject to Without the consent of the Indemnitee, which not to be unreasonably withheld, Indemnitor shall not be unreasonably withheld consent to the entry of any judgment or delayedenter into any settlement in each case including anything other than monetary damages which does not include as an unconditional term thereof the giving by the claimant or plaintiff to all Indemnitees a release from all Liability with respect to such claims. The Except as set forth in this Section 11.7, Indemnitor may shall have no Liability for any settlement entered into by any Indemnitee without the prior written consent of the Indemnitor so long as the Indemnitor is reasonably complying with its obligations under this Section 11.7. If the Indemnitor does not admit any liability assume the defense of such claim within thirty (30) days after written notice thereof from the Indemnitee or waive any does not thereafter diligently conduct such defense, the Indemnitee may defend against such claim at the sole cost and expense of the Indemnitee’s rights without Indemnitor. Notwithstanding the Indemnitee’s prior written consent. If the subject of any Third Party Claim results in a judgment or settlement consistent with the foregoing terms of this Section 10.04(a) 11.7, if there is any threat of a temporary, preliminary or permanent injunction in any claim, action or proceeding for which indemnification may be sought with respect to Acquired Intellectual Property Rights, Purchasers shall have the Indemnitor is liable hereunderoption to control the defense and settlement of such claim, the Indemnitor shall promptly pay such judgment action or settlementproceeding.

Defense by Indemnitor. Upon receipt of notice from the Indemnitee of a Claim by a Third Party third party (a “Third Party Claim”), the Indemnitor may elect to assume the defense of such Claim by providing counsel (such counsel subject to the reasonable approval of the Indemnitee) to defend the Indemnitee against the matter from which the Third Party Claim arose, at the Indemnitor’s sole cost, risk and expense. The Indemnitee shall cooperate, in all reasonable respects and at the Indemnitor’s sole cost, risk and expense, with the Indemnitor in the investigation, trial, defense and any appeal arising from the matter from which the Third Party Claim arose; provided, however, that the Indemnitee may (but shall not be obligated to) participate in (but not control) any such investigation, trial, defense and any appeal arising in connection with the Third Party Claim at its sole cost, risk and expense. If the Indemnitee elects 51 to so participate, the Indemnitor shall cooperate with the Indemnitee, and the Indemnitor shall deliver to the Indemnitee or its counsel copies of all pleadings and other information within the Indemnitor’s knowledge or possession reasonably requested by the Indemnitee or its counsel that is relevant to the defense of such Third Party Claim and that will not prejudice the Indemnitor’s position, claims or defenses. The Indemnitor shall have the right to elect to settle any Third Party Claim for monetary damages without the Indemnitee’s consent only if (i) the settlement includes a complete release of the Indemnitee without any admission of wrongdoing by the Indemnitee and without any restrictions on any future actions of the Indemnitee and (ii) with respect to Taxes for which the Company Stockholders are liable hereunder, such settlement would not be expected to affect the Tax liability of the Company or Parent for periods following the Closing. Any other settlement will be subject to the consent of the Indemnitee, which shall not be unreasonably withheld or delayed. The Indemnitor may not admit any liability of the Indemnitee or waive any of the Indemnitee’s rights without the Indemnitee’s prior written consent. If the subject of any Third Party Claim results in a judgment or settlement consistent with the terms of this Section 10.04(a9.4(b) for which the Indemnitor is liable hereunder, the Indemnitor shall promptly pay such judgment or settlement.

Defense by Indemnitor. Upon Indemnitor, within a reasonable time after receipt of notice from the Indemnity Notice relating to a third-party claim, but in no event later than thirty (30) days after such receipt, shall notify Indemnitee of a Claim by a Third Party (a “Third Party Claim”), the Indemnitor may elect its intention to assume the defense of such Claim by providing counsel (such counsel subject to the reasonable approval claim. If the Indemnitor assumes the defense of the Indemnitee) to defend claim, Indemnitor shall have the Indemnitee against the matter from which the Third Party Claim aroseright to, at the Indemnitor’s sole cost, risk cost and expense: (i) conduct any proceedings, or negotiations in connection therewith and necessary or appropriate to defend the Indemnitee; (ii) take all required steps or proceedings to settle or defend such claims; and (iii) employ counsel to contest any such claim or liability in the name of the Indemnitee or otherwise. The If defendants in any action related to a claim for indemnity hereunder include both the Indemnitee and the Indemnitor, and the Indemnitee has been advised by its counsel that there may be legal defenses available to the Indemnitee which are different from or in addition to the defenses available to the Indemnitor, the Indemnitee shall cooperate, have the right to employ its own counsel in all reasonable respects and at such action (reasonably acceptable to the Indemnitor’s sole cost), risk and expensein such an event, the reasonable fees and expenses of such separate counsel shall be borne by the Indemnitor. Notwithstanding anything to the contrary in this subsection, the Indemnitee shall always have the right to employ its own counsel at its own cost and expense and to fully participate in its defense. Indemnitee shall cooperate fully with Indemnitor and its counsel in the defense of any claim. Any compromise or settlement of such claim by the Indemnitor in shall require the investigation, trial, defense prior written consent of the Indemnitee and any appeal arising from until such consent is obtained Indemnitor shall continue to defend the matter from which the Third Party Claim aroseclaim; provided, however, that if the Indemnitee may (but shall not be obligated to) participate in (but not control) any such investigation, trial, defense and any appeal arising in connection with the Third Party Claim at its sole cost, risk and expense. If the Indemnitee elects 51 refuses to so participate, consent to a bona fide offer of settlement that the Indemnitor shall cooperate with wishes to accept and such settlement offer: (i) involves no limitation on the Indemnitee’s ownership or use of its assets or the operation of its business, and (ii) includes an unconditional term by which the Indemnitor shall deliver claimant or the plaintiff gives to the Indemnitee or its counsel copies a full and unconditional release from all liability in respect of all pleadings and other information within such claim to be settled; the Indemnitor’s knowledge or possession reasonably requested by the Indemnitee or its counsel that is relevant to Indemnitor may reassign the defense of such Third Party Claim and that will not prejudice the Indemnitor’s position, claims or defenses. The Indemnitor shall have the right claim to elect to settle any Third Party Claim for monetary damages without the Indemnitee, who may then continue to defend the claim free of any participation of Indemnitor, at Indemnitee’s consent only if (i) sole cost and expense. In such event, the obligation of the Indemnitor with respect thereto shall not exceed the amount of the offer of settlement includes a complete release refused by Indemnitee plus the costs and expenses of the Indemnitee without any admission of wrongdoing by for which indemnity is available incurred prior to the Indemnitee and without any restrictions on any future actions date of the Indemnitee and (ii) with respect to Taxes for which the Company Stockholders are liable hereunder, such settlement would not be expected to affect the Tax liability of the Company or Parent for periods following the Closing. Any other settlement will be subject to the consent of the Indemnitee, which shall not be unreasonably withheld or delayed. The Indemnitor may not admit any liability of the Indemnitee or waive any of the Indemnitee’s rights without the Indemnitee’s prior written consent. If the subject of any Third Party Claim results in a judgment or settlement consistent with the terms of this Section 10.04(a) for which the Indemnitor is liable hereunder, the Indemnitor shall promptly pay such judgment or refused settlement.