Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim: (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and (ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim. (b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof. (c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned. (d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter. (e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof. (f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (TILT Holdings Inc.), Agreement and Plan of Merger (TILT Holdings Inc.), Merger Agreement
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers any Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Purchaser Indemnitee reimbursed pursuant to this Article X (a “Third Party Claim”Section 7, other than any Tax Claim the procedures for which are set forth in Section 5.5(e), if (a) Purchaser shall notify the Sellers’ Representative agrees promptly after Purchaser receives written notice of such claim or Legal Proceeding (it being understood that any failure by Purchaser to so notify the applicable Seller Representative shall indemnify have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 7 to the extent such failure is not prejudicial), (b) Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then shall have the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claimclaim or Legal Proceeding on its own; and (c) the Representative shall be entitled, if determined adversely at its expense (on behalf of the Securityholders), to Purchaser Indemnitee, would be likely to result participate in injunctions, equitable remedies or reputational damage in respect any defense of such Purchaser Indemniteeclaim or Legal Proceeding. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claim:
claim or Legal Proceeding: (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials that Purchaser determine in their possession or control, reasonably requested by Purchaser, that good faith may be necessary to the defense of such Third Party Claim.
claim or Legal Proceeding; and (bii) In the event the Sellers’ Representative does not assume the defense of Purchaser shall be entitled to settle, adjust or compromise such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest claim or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Legal Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative, provided, that, if the written consent of the Representative or the applicable Purchaser Indemnitee, as the case may be, such is not obtained (which consent shall not to be unreasonably withheld, conditioned or delayed) such settlement, adjustment or conditioned.
(d) If compromise shall not be dispositive of the Sellers’ Representative assumes the defense existence of such third party claim an indemnifiable claim. Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to mitigate Damages in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterLegal Requirements.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than of a party hereto, of any claim or Proceeding Third Party Claim (whether against the CompanyUAV, Purchaser or any other Person) with respect to which the Sellers Seller may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 10, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claim:
(i) subject Seller shall make available to Purchaser any documents or other materials in Seller’s possession or control or in the other provisions control of this Article X, all reasonable expenses relating any of Seller’s Representatives that may be necessary or otherwise relevant to the defense of such Third Party Claim;
(ii) Purchaser shall have the right to settle, adjust or compromise such Third Party Claim; provided, however, that if the Purchaser settles, adjusts or compromises any such Third Party Claim without the consent of Seller, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by Purchaser in connection with such Third Party Claim (it being understood that: (A) if Purchaser requests that Seller consent to a settlement, adjustment or compromise, Seller shall not unreasonably withhold, condition or delay such consent; and (B) the consent of Seller with respect to any settlement, adjustment or compromise of any such Third Party Claim shall be borne and paid exclusively deemed to have been given unless Seller shall have objected within 20 days after a written request for such consent by the applicable indemnifying SellerPurchaser); and
(iiiii) if Seller shall have the Sellers’ Representative proceeds right, at its expense, to participate in (but not control) the defense, settlement, adjustment and compromise of such Third Party Claim, and Purchaser shall consider in good faith any comments made by Seller in connection therewith.
(b) If Purchaser does not elect to proceed with the defense of any such Third Party Claim, Seller may proceed with the defense of such Third Party Claim at the expense of Seller with counsel reasonably satisfactory to Purchaser; provided, however, that Seller may not settle, adjust or compromise any such Third Party Claim without the prior written consent of Purchaser (it being understood that: (i) if Seller requests that Purchaser consent to a settlement, adjustment or compromise, Purchaser shall not unreasonably withhold, condition or delay such consent; and (ii) the consent of Purchaser Indemnitee with respect to any settlement, adjustment or compromise of any such Third Party Claim shall make available be deemed to have been given unless Purchaser shall have objected within 20 days after a written request for such consent by Seller). Purchaser shall give Seller prompt notice of the commencement of any Third Party Claim against Purchaser or UAV with respect to which Purchaser intends to demand indemnification from Seller; provided, however, that any failure on the part of Purchaser to so notify Seller shall not limit any of the obligations of Seller under this Section 10 (except to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to extent such failure prejudices the defense of such Third Party Claim). If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.50
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle Notwithstanding any indemnifiable matters related to Third Party Claims without the prior written consent other provision of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6Agreement, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense control of any Tax Proceeding in defense thereof by counsel respect of its own choosing, but the Sellers’ Representative UAV or Seller shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular mattergoverned exclusively by Section 6.3.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Genius Group LTD), Stock Purchase Agreement (Genius Group LTD)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a third party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) proceeding with respect to which the Sellers may become obligated hereunder to indemnify, hold harmless, indemnify, compensate or reimburse any the Purchaser Indemnitee pursuant to this Article X Section 15, the Purchaser shall reasonably promptly, but in any event within thirty (a “Third Party Claim”30) days following knowledge thereof, notify Sellers of such claim or proceeding and of the facts within the Purchaser’s knowledge related thereto by providing written notice to the Sellers. Save for liabilities in relation to product warranties (which may be handled by Purchaser at its discretion), if Sellers shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense defense, negotiation and settlement of such Third Party Claim claim or proceeding at its sole expense. Notwithstanding anything to the contrary contained herein, in the event of an indemnification claim arising under Section 13 if the Sellers propose to settle such Third Party Claim, if determined adversely to Purchaser Indemnitee, third-party claim for an amount that exceeds the maximum amount for which Sellers would be likely liable pursuant to result in injunctionsSection 13, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of then Sellers shall not agree to any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, Purchaser. In any such consent not to be unreasonably withheld, delayed, or conditioned.matter:
(d1) If the Sellers’ Representative assumes Sellers shall proceed to defend such claim or proceeding in a diligent manner, always taking the due interests of the Purchaser reasonably into account;
(2) the Sellers shall keep the Purchaser informed of all material developments and events relating to such claim or proceeding and consult the Purchaser in advance in order to comply with point (1) above;
(3) the Purchaser shall make available to the Sellers any documents and materials in the possession or control of the Purchaser that may be reasonably necessary to the defense of such third party claim in accordance with this Section 10.6, or proceeding; and
(4) the applicable Purchaser Indemnitee shall have the right, but not the obligation, right to participate in the defense of such claim or proceeding at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterexpense.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Sale of Assets Agreement, Sale of Assets Agreement (Planar Systems Inc)
Defense of Third Party Claims. (a) In Parent shall determine and conduct the event of defense and the assertion settlement, adjustment or commencement by any Person, other than a party hereto, compromise of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by Parent in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) may be included by Parent in the Damages for which Parent may seek indemnification pursuant to a Claim made by any Parent Indemnified Person hereunder.
(b) The Representative shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim (to the extent that receipt of such Proceeding documents by the Representative does not affect any privilege relating to the Parent Indemnified Person and subject to execution by the Representative of Parent’s standard non-disclosure agreement to the extent that such materials contain confidential or proprietary information). The Representative may participate at the compromise expense of the Effective Time Holders in, but not determine or conduct, any defense of the Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence or amount of Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeRepresentative, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
delayed (d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative it being understood and agreed that it shall be entitled reasonable for the Representative to control withhold consent to any requested settlement if the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability Representative believes in good faith that there is not any underlying basis for indemnification under Section 11.2 with respect to such settlement). In the particular matter.
(e) If event that the Sellers’ Representative undertakes has consented to any such settlement, neither the defense Representative nor any Effective Time Holder shall have any power or authority to object under any provision of this Article 11 to the amount of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal claim by or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense on behalf of any Third Party Claim in accordance Parent Indemnified Person against the Aggregate Escrow Cash for indemnification with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled respect to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsuch settlement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (MINDBODY, Inc.)
Defense of Third Party Claims. If any legal proceeding shall be instituted, or any claim or demand made, by any third party against any Indemnified Party in respect of which the Company or Mill▇▇ ▇▇▇ be liable hereunder, such Indemnified Party shall give prompt written notice thereof to the Company or Mill▇▇ ▇▇▇, except as otherwise provided in SECTION 8.4 below, the Company or Mill▇▇ ▇▇▇ll defend any litigation, action, suit, demand, or claim for which such Indemnified Party may seek indemnification with counsel satisfactory to the Company or Mill▇▇; ▇▇ovided, however, if in the reasonable judgment of Buyer, (ai) such litigation, action, suit, demand or claim, or the resolution thereof, would have a Material Adverse Effect on Buyer or (ii) the Company or Mill▇▇ ▇▇▇ll have a conflict of interest in defending such action on Buyer's, the Company's or Mill▇▇'▇ ▇▇▇alf, at Buyer's election, Buyer may defend itself, and in either of such instances the Company or Mill▇▇ ▇▇▇ll be liable for all expenses reasonably incurred in connection therewith (including, without limitation, settlement payments and reasonable attorney's and professional's fees and disbursements). If neither (i) nor (ii) are applicable but Buyer desires to participate in the defense of an action the Company or Mill▇▇ ▇▇▇ defending because in Buyer's reasonable judgment the outcome of such action could have an ongoing effect on Buyer, Buyer may participate but at its own expense. In the event the Company or Mill▇▇ ▇▇▇ls or refuses to defend any legal proceeding he, she or it is required to defend under this ARTICLE VIII within a reasonable length of time, the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, Indemnified Parties shall be entitled to defend, contest or otherwise protect against any such Proceeding at assume the expense of the applicable Sellerdefense thereof, and the Purchaser Company and Mill▇▇ ▇▇▇ll be liable to repay the Purchaser Indemnitee must cooperate Indemnified Parties for all expenses reasonably incurred in any such connection with said defense (including, without limitation, settlement payments and reasonable attorney's fees). If the Company or other action. Notwithstanding the foregoing, the Sellers’ Representative shall Mill▇▇ ▇▇▇ll not have the right to assume the defense of any litigation, action, suit, demand, or claim in any legal proceeding he, she or it is required to defend under this ARTICLE VIII, the Indemnified Parties shall have the absolute right, at the Company's and Mill▇▇'▇ ▇▇▇ense, to control the defense of and to settle, in its sole discretion and without the consent of the Company or Mill▇▇, ▇▇ch litigation, action, suit, demand, or claim, but the Company or Mill▇▇ ▇▇▇ll be entitled, at their own expense, to participate in such Third Party Claim if such Third Party Claimlitigation, if determined adversely action, suit, demand, or claim. The party controlling any defense pursuant to Purchaser Indemniteethis SECTION 8.2 shall deliver, would or cause to be likely delivered to result the other party, copies of all correspondence, pleadings, motions, briefs, appeals or other written statements relating to or submitted in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds connection with the defense of any such Third Party Claim:
(i) subject to the litigation, action, suit, demand, or claim, and timely notices of any hearing or other provisions of this Article X, all reasonable expenses court proceeding relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimlitigation, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or controlaction, reasonably requested by the Sellers’ Representativesuit, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayeddemand, or conditionedclaim.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Global Vacation Group Inc), Asset Purchase Agreement (Global Vacation Group Inc)
Defense of Third Party Claims. (a) In Except as otherwise provided in Article 10, in the event of the assertion or commencement by any Person, other than a party hereto, of any claim or the commencement by any Person of any Proceeding (whether against the an Acquired Company, Purchaser against Purchaser, against Sellers or against any other Person) with respect to which the Sellers or Purchaser, as applicable,may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X 10 (each, a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claimor Seller, then the Sellers’ Representative, at its electionas applicable, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right right, upon written notice to the other Party within thirty (30) days of receipt of a Claim, to assume the defense and control of such Third Claim; provided that Purchaser or Sellers, as applicable, shall be permitted to participate in such prosecution and defense and Purchaser and Sellers will provide the other Party with reasonable access to all relevant information and documentation relating to the Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteeand the prosecution and defense thereof. If the Purchaser or Sellers’ Representative , as applicable, so proceeds with the defense of any such Third Party Claim:
(ia) subject to the other provisions of this Article XSellers or Purchaser, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the as applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee ,shall make available to the Sellers’ Representative other Party any documents and materials in their its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, or, in the applicable indemnifying Seller shall make available to Purchaser any event the delivery of such documents and materials in their possession would (i) violate Applicable Law or control(ii) breach a Contract or obligation of confidentiality owing to a third party or (iii) constitute a waiver of the Sellers’ or Purchaser’s, reasonably requested by as applicable, attorney-client privilege, Sellers or Purchaser, that may be necessary as applicable, shall provide summaries, excerpts or any other information in connection with such documents and materials to the maximum extent legally permissible and shall use reasonable efforts to assist and participate in such defense (at its own expense, which amount shall not constitute “Damages” of the Sellers or Purchaser, as applicable) as it relates to such Third Party Claim.materials and documents; and
(b) In the event the Purchaser and Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may beapplicable, shall not compromise and settle enter into settlement of any indemnifiable matters related to Third Party Claims Claim without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed). Purchaser or Sellers’ Representative or the applicable Purchaser Indemnitee, as applicable,shall give the case may beother Party prompt notice of the commencement of any such Claim against an Indemnitee; provided, however, that any failure on the part of Purchaser or Sellers, as applicable, to so notify the other Party shall not limit any of the obligations of Sellers or Purchaser under this Article 10 (except to the extent such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes failure materially prejudices the defense of such third party claim Proceeding). Such notice shall describe the Claim in accordance with this Section 10.6reasonable detail based upon the information then possessed by Purchaser or Seller, as applicable, include copies of all material written evidence thereof, and shall indicate the applicable Purchaser Indemnitee shall have the rightestimated amount, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect if reasonably practicable and to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the extent known to Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying or Seller, any legal as applicable, of the Damages that have been or other expenses subsequently incurred may be sustained by the Purchaser Indemnitee in connection with the defense thereofIndemnitee.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Esports Entertainment Group, Inc.), Equity Purchase Agreement (Esports Entertainment Group, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated an Indemnified Party believes it is entitled to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee indemnification pursuant to this Article X (a “Third ARTICLE IX, such Indemnified Party Claim”), if shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeProceeding on its own. If the Sellers’ Representative such Indemnified Party so proceeds with the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject to the other provisions of this Article XARTICLE IX, all reasonable expenses (including attorney’s fees) relating to the defense of such Third Party Claim claim or Proceeding (and all amounts due pursuant to any settlement, adjustment or compromise with respect to such claim or Proceeding) shall be borne and paid exclusively by the applicable indemnifying Seller; andIndemnifying Parties;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Indemnifying Parties shall make available to the Sellers’ Representative Indemnified Party any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third claim or Proceeding;
(c) the Sellers’ Representative will be entitled to participate in the defense of any such claim or Proceeding on behalf of the Indemnifying Parties (but not to appear of record or communicate with the Person asserting any such claim or Proceeding or its Representatives), at the sole cost and expense of the Indemnifying Parties; and
(d) the Indemnified Party Claimshall not agree to any settlement of any claim or Proceeding with respect to which it believes it is entitled to indemnification pursuant to this ARTICLE IX that imposes any Liability on any Indemnifying Party without the consent of the Sellers’ Representative (which shall not be unreasonably withheld or delayed). An Indemnified Party shall give the Sellers’ Representative notice after it has been served in connection with the commencement of any such claim or Proceeding against any Indemnified Party; provided, that any failure on the part of any Indemnified Party to so notify the Sellers’ Representative shall not limit any of the obligations of the Sellers, or any of the rights of any Indemnified Party, under this ARTICLE IX (except to the extent such failure materially prejudices the defense of such Proceeding). If the Purchaser proceeds an Indemnified Party does not elect to proceed with the defense of any such Third Party ClaimProceeding, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that Sellers’ Representative may be necessary to proceed with the defense of such Third Proceeding with counsel reasonably satisfactory to the Indemnified Party Claim.
(b) In the event or Indemnified Parties; provided, that the Sellers’ Representative does may not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest settle or otherwise protect against the same and make compromise any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Indemnified Party or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditionedIndemnified Parties.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Juno Therapeutics, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the a Group Company, against the Purchaser or against any other Person) (a “Third Party Claim”) with respect to which any of the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee Indemnified Party pursuant to this Article X (a “Third Party Claim”)6, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeLegal Proceeding on its own. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andSellers;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying each Seller shall make available to Purchaser any documents and materials in their his or its possession or control, reasonably requested by Purchaser, control that may be necessary to the defense of such Third Party Claim.claim or Legal Proceeding; and
(bc) In Purchaser shall have the event right to settle, adjust or compromise such claim or Legal Proceeding at its own reasonable discretion. Purchaser shall give the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent prompt notice of the Sellers’ Representative commencement of any such Legal Proceeding against Purchaser or any Group Company; provided, however, that any failure on the applicable part of Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but so notify the Sellers’ Representative shall be entitled to control not limit any of the defense unless obligations of the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Sellers under this Article 6 (except to the particular matter.
(e) If the Sellers’ Representative undertakes extent such failure materially prejudices the defense of any Third Party Claim in accordance with this Section 10.6such Legal Proceeding). CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, the Purchaser Indemnitee shall notMARKED BY BRACKETS, so long as the Sellers’ Representative does not abandon the defense thereofHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofAS AMENDED.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Share Purchase and Transfer Agreement, Share Purchase and Transfer Agreement (Reval Holdings Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) Third-Party Claim with respect to which the Sellers any indemnified party may become obligated be entitled to hold harmless, indemnify, compensate indemnification or reimburse any Purchaser Indemnitee other remedy pursuant to this Article X (a “Third 11, such indemnified party shall promptly give Purchasers or Sellers Representative, as applicable, written notice of such Third-Party Claim”); provided, if however, that any failure on the Sellers’ Representative agrees that the applicable Seller shall indemnify part of such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ indemnified party to so notify Purchasers or Sellers Representative, at its electionas applicable, shall be entitled not limit any of such indemnified party's rights to defend, contest or otherwise protect against any indemnification under this Article 11 (except to the extent such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume failure materially prejudices the defense of such Third Party Claim if such Third Third-Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim).
(b) In the event the Sellers’ Representative does not assume the defense Within ten days of delivery of such Third written notice, Purchasers or Sellers Representative, as applicable, may elect (by written notice delivered to the other), at the sole cost and expense of CharterMac or Sellers, as applicable, to take all necessary steps properly to contest any Third-Party Claim in accordance with this or to prosecute such Third-Party Claim to conclusion or, subject to Section 10.611.4(c), settle such Third-Party Claim. If Purchasers or Sellers Representative, as applicable, makes the Purchaser Indemnitee shall foregoing election, an indemnified party will have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, right to participate at its own expense in all proceedings. If Purchasers or Sellers Representative, as applicable, does not make such election within such period or fails to diligently contest such Third-Party Claim after such election, then the indemnified party shall be free to handle the prosecution or defense thereof by counsel of any such Third-Party Claim, and will take all necessary steps to contest the Third-Party Claim or to prosecute such Third-Party Claim to conclusion or settlement, and will notify Purchasers or Sellers Representative, as applicable, of the progress of any such Third-Party Claim, will permit Purchasers or Sellers Representative, as applicable, at the sole cost and expense of CharterMac or Sellers, as applicable, to participate in such prosecution or defense and will provide Purchasers or Sellers Representative, as applicable, with reasonable access to all relevant information and documentation relating to the Third-Party Claim and the prosecution or defense thereof. Notwithstanding the foregoing, Purchasers shall control the defense and settlement of any Third-Party Claim with respect to Taxes.
(c) Neither Purchasers nor Sellers Representative will compromise or settle any such Third-Party Claim without the written consent of either Purchasers (if Sellers Representative defends the Third-Party Claim) or Sellers Representative (if Purchasers or any Purchasers Indemnitee defends the Third-Party Claim). Notwithstanding anything in this Agreement to the contrary, any indemnified party may withhold its consent to any settlement that does not include a full general release of all the claims against such indemnified party from all parties to the litigation or that requires such indemnified party or any of its own choosingAffiliates to perform any covenant or refrain from engaging in any activity.
(d) If Sellers Representative elects, but by written notice delivered to CharterMac within ten days following the Sellers’ delivery of written notice of any Third-Party Claim, to assume the defense of such Third-Party Claim, Sellers Representative shall be entitled to control direct the Escrow Agent to release from the Escrow Amount the reasonable costs and expenses of such defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim incurred by Sellers Representative. Such reimbursements shall occur in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as terms of the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofEscrow Agreement.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (American Mortgage Acceptance Co), Securities Purchase Agreement (Chartermac)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller or the Principal Shareholder may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if and the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller or the Principal Shareholder to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller or Principal Shareholder shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfy, the Seller, the Seller Subsidiary or the Principal Shareholder satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller the Principal Shareholder any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller or Principal Shareholder shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller or Principal Shareholder shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Seller or Principal Shareholder to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Seller or Principal Shareholder to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller or Principal Shareholder to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Seller or Principal Shareholder;
(ii) the Seller or Principal Shareholder shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller or Principal Shareholder that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Seller and Principal Shareholder informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Seller or Principal Shareholder provided, however, that the applicable Purchaser Indemnitee, as the case may be, Seller or Principal Shareholder shall not unreasonably withhold or delay such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Electric Tractor Corp.), Asset Purchase Agreement (Electric Tractor Corp.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against any of the CompanyAcquired Companies, Purchaser or any other Person) with respect to which the Sellers any Seller (including any Designated Seller) may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to Section 5 (other than a claim or Legal Proceeding under the Tax Covenant or a claim or Legal Proceeding under this Article X Agreement in respect of any Tax-related matter (a “Third Party Claim”with respect to which clause 4 of the Tax Covenant shall apply instead)), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Legal Proceeding on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative Agent. If Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying each Seller shall make available to Purchaser any documents and materials in their his possession or control, reasonably requested by Purchaser, control that may be necessary to the defense of such Third Party Claim.claim or Legal Proceeding;
(b) In Purchaser shall have the event right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that: (i) before finally settling, adjusting or compromising such claim or Legal Proceeding, Purchaser shall consult with the Sellers’ Representative does Agent by informing the Sellers’ Agent of the terms of such settlement, adjustment or compromise and soliciting the Sellers’ Agent’s opinion thereon; and (ii) if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Sellers’ Agent, such settlement, adjustment or compromise shall not assume be conclusive evidence of the amount of Damages incurred by Purchaser in connection with such claim or Legal Proceeding (it being understood that if Purchaser requests that the Sellers’ Agent consent to a settlement, adjustment or compromise, the Sellers’ Agent shall not unreasonably withhold or delay such consent); and
(c) Purchaser shall reasonably provide the Sellers’ Agent with oral or written updates concerning material developments in the defense of such Third Party Claim in accordance claim or Legal Proceeding. Purchaser shall give the Sellers’ Agent prompt written notice of the commencement of any such claim or Legal Proceeding against Purchaser or any Acquired Company; provided, however, that any failure on the part of Purchaser to so notify the Sellers’ Agent shall not limit any of the obligations of the Sellers under Section 5 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Purchaser does not elect to proceed with this Section 10.6the defense of any such claim or Legal Proceeding, the Purchaser Indemnitee shall have Sellers’ Agent may proceed with the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result defense of such claim or Legal Proceeding or with counsel reasonably satisfactory to Purchaser; provided, however, that the compromise or settlement thereof.
(c) The Sellers’ Representative Agent may not settle, adjust or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims such claim or Legal Proceeding without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case (which consent may be, such consent not to be unreasonably withheld, withheld or delayed, or conditioned).
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Riverbed Technology, Inc.)
Defense of Third Party Claims. Except as set forth below and in Section 6.5(c) and with respect to Tax Claims (a) In which shall be exclusively covered by Section 5.11(d)), in the event of the assertion or commencement by any Person, Person (other than a party hereto, to this Agreement) of any claim or Legal Proceeding (whether against the Company, with respect to which Seller may become obligated to indemnify Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 6, if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with control the defense of any such Third Party Claim:
(i) subject claim or Legal Proceeding with counsel reasonably satisfactory to the other provisions of this Article XPurchaser, all reasonable expenses relating to the defense of such Third Party Claim and Purchaser shall be borne and paid exclusively by the applicable indemnifying Seller; and
entitled to participate in (iibut not control) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding, Purchaser with its counsel and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or controlat its own expense; provided, reasonably requested by the Sellers’ Representativehowever, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying if Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of any such Third Party Claim claim or Legal Proceeding within 15 days after the receipt of notice of such claim or Legal Proceeding, Purchaser shall be entitled to control the defense of such claim or Legal Proceeding indefinitely thereafter. Notwithstanding the foregoing, in accordance no event shall Seller be permitted to defend against any such claim or Legal Proceeding: (i) unless Seller agrees in writing to indemnify the Purchaser Indemnitees for any Damages arising out of such claim or Legal Proceeding; (ii) unless Seller provides Purchaser with evidence reasonably acceptable to Purchaser that Seller will have the financial resources to defend against such claim or Legal Proceeding and fulfill its indemnification obligations hereunder; (iii) if the claim or Legal Proceeding involves a criminal charge; (iv) if the claim or Legal Proceeding seeks, as its principal remedy, an injunction or other equitable relief; (v) if settlement of, or an adverse judgment with respect to, the claim or Legal Proceeding would, in the good faith judgment of Purchaser, likely establish a precedential custom or practice adverse to the continuing business interests or the reputation of Purchaser; (vi) if Purchaser reasonably determines that the aggregate amount of Damages arising out of such claim or Legal Proceeding would exceed the maximum indemnification liability of Seller with respect to such claim or Legal Proceeding under this Section 10.6, 6 (taking into account any previous indemnification payments paid or payable by Seller hereunder); or (vii) if Seller does not conduct the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result defense of such claim or Legal Proceeding actively and diligently. Except as set forth in Section 6.5(c), neither Purchaser nor Seller shall settle or compromise any such claim or Legal Proceeding subject to the compromise indemnification provisions of this Agreement without the prior written consent of Seller or settlement thereof.
(c) The Sellers’ Representative or the Purchaser IndemniteePurchaser, as the case may be, which consent shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, withheld or delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (United Online Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than Person not a party hereto, Party hereto of any claim or Proceeding (whether against the Company, Purchaser Indemnitees or against any other Person) with respect to which the Sellers Seller and Shareholder may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoingSection 7, the Sellers’ Representative Seller and Shareholder shall not have the right to assume the defense of such Third Party Claim if such Third Party Claimclaim or Proceeding at the sole expense of the Seller and Shareholder and, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claimconnection therewith:
(ia) subject The Seller and Shareholder shall proceed to defend such claim or Proceeding in a diligent manner with counsel reasonably satisfactory the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, The Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller and Shareholder any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession claim or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.Proceeding;
(c) The Sellers’ Representative or Seller and Shareholder shall keep the Purchaser Indemniteeinformed of all Material developments and events relating to such claim or Proceeding;
(d) The Purchaser shall have the right to participate in the defense of such claim or Proceeding at the cost and expense of Purchaser, as provided however, if Seller or Shareholder fails to comply with the case may beterms of this Section 7.5, the cost and expense of defense of such claim expended by Parent or Purchaser shall be reimbursed to Parent or Purchaser by Seller or Shareholder;
(e) The Seller and Shareholder shall not settle, adjust or compromise and settle any indemnifiable matters related to Third Party Claims such claim or Proceeding if such settlement would have a Material adverse effect on the Purchaser (after taking into account this indemnity) without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteePurchaser, as the case may be, such which consent shall not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sagamore Holdings Inc), Asset Purchase Agreement (Jaco Electronics Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a third party hereto, of any claim or Legal Proceeding (whether against which for the Company, Purchaser avoidance of doubt includes any claims or any other Personcontroversies related to Taxes) with respect to which the Sellers any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X 8 (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Legal Proceeding on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteethe Stockholders’ Agent. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X8, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andIndemnitors upon receipt of invoices issued by counsel defending such claim or Legal Proceeding;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee each Indemnitor shall make reasonably available to the Sellers’ Representative Purchaser any documents and materials in their his possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession claim or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.Legal Proceeding; and
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not have the right to settle, adjust or compromise and settle any indemnifiable matters related to Third such Third-Party Claims Claim without the prior written consent of the SellersStockholders’ Representative or the applicable Purchaser Indemnitee, as the case may be, such Agent (which consent shall not to be unreasonably withheld, conditioned or delayed). The Purchaser shall give the Stockholders’ Agent prompt notice of the commencement of any such Legal Proceeding against the Purchaser or any of the Acquired Companies; provided, however, that any failure on the part of the Purchaser to so notify the Stockholders’ Agent shall not limit any of the obligations of the Indemnitors under Article 8 unless (i) such failure has a materially prejudicial effect on the defenses or conditioned.
other rights available to the Indemnitors with respect to such Third-Party Claim or the indemnification obligations are materially increased as a result of such failure or (dii) such Claim Notice is not provided within the periods set forth in Section 8.1, in which case no claim may be made by any Indemnitee for indemnification. If the SellersPurchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Representative assumes Agent may proceed with the defense of such third party claim in accordance or Legal Proceeding with this Section 10.6counsel reasonably satisfactory to the Purchaser; provided, however, that the applicable Purchaser Indemnitee shall have deliver to the rightStockholders’ Agent, but promptly following the Indemnitee’s receipt thereof, copies of all material notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim and the Stockholders’ Agent may not settle, adjust or compromise any such Third-Party Claim without the obligation, to participate at its own expense in defense thereof by counsel prior written consent of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter(which consent may not be unreasonably withheld, conditioned or delayed).
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (OMNICELL, Inc)
Defense of Third Party Claims. (a) In With respect to any claim by Purchaser or Hospitality under Section 8.1, relating to a third party claim or demand, Purchaser and Hospitality shall provide Seller with prompt written notice thereof in accordance with Section 10.4 and Seller may defend, in good faith and at its expense, by legal counsel chosen by it and reasonably acceptable to Purchaser and Hospitality any such claim or demand, and Purchaser and Hospitality, at their expense, shall have the event of right to participate in the assertion or commencement by any Person, other than a party hereto, defense of any claim or Proceeding (whether against the Companysuch third party claim. So long as Seller is defending in good faith any such third party claim, Purchaser and Hospitality shall not settle or compromise such third party claim. In any other Person) with respect to which event, Purchaser and Hospitality shall cooperate in the Sellers may become obligated to hold harmlesssettlement or compromise of, indemnifyor defense against, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other actionasserted claim. Notwithstanding the foregoing, Seller shall obtain the Sellers’ Representative consent of Purchaser and Hospitality, which consent shall not be unreasonably withheld, prior to settling any such third party claim. In the event, the Seller shall notify the Purchaser and Hospitality that it disputes any claim made by the Purchaser or Hospitality and/or it shall fail to defend such claim actively and in good faith, then the Purchaser and Hospitality shall have the right to assume conduct a defense against such claim and shall have the defense right to settle and compromise such claim without the consent of the Seller. Once the amount of such Third Party Claim if such Third Party Claimclaim is liquidated and the claim is finally determined, if determined adversely the Purchaser and Hospitality shall be entitled to Purchaser Indemnitee, would be likely pursue each and every remedy available to result it at law or in injunctions, equitable remedies or reputational damage equity (through the procedure specified in respect of such Purchaser Indemnitee. If Section 8.5) to enforce the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other indemnification provisions of this Article XVIII and, in the event it is determined, or the Seller agrees, that it is obligated to indemnify the Purchaser and Hospitality for such claim, the Seller agrees to pay all costs, expenses and fees, including all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimattorneys' fees, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that which may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofattempting to enforce indemnification under this Article VIII.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Apple South Inc), Asset Purchase Agreement (Apple South Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a third-party hereto, Person of any claim or Legal Proceeding (whether against the any Acquired Company, Purchaser or any other Person) with respect to which the Sellers may any Indemnitor would be reasonably be expected to become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 11 (a “Third Party Claim”including any claim or Legal Proceeding by or before any Governmental Entity relating to any Liability relating to Taxes of any Acquired Company), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if claim or Legal Proceeding on its own, provided, that the Indemnitor (including the Seller’s Representative on behalf of the Sellers) shall have the right (at its sole cost and expense) to (x) participate in the defense of any such Third Party Claimthird party claim (1) that seeks an injunction, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, specific performance or other equitable remedies or reputational damage in respect relief against the Indemnitor as a remedy of such Purchaser third party claim, (2) alleging or asserting any criminal liability of the Indemnitor, or (3) with respect to any Tax matter, and (y) control the defense of any third party claim (1) that seeks an injunction, specific performance or other equitable relief against the Indemnitor as the primary remedy of such third party claim or (2) alleging or asserting any criminal liability of the Indemnitor (but not any Indemnitee). If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding in accordance with the foregoing, then:
(ia) subject to the other provisions of this Article X, all reasonable and documented out-of-pocket expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andIndemnitors solely to the extent such claim or Legal Proceeding is indemnifiable hereunder;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller each Indemnitor shall make available to Purchaser any documents and or other materials in their such Indemnitor’s possession or control, reasonably requested by Purchaser, control or in the control of any of such Indemnitor’s Representatives that may be reasonably necessary or otherwise relevant to the defense of such Third Party Claim.claim or Legal Proceeding (provided, that, an Indemnitor shall not be required to permit any inspection, or to disclose any information, that in the reasonable, good-faith judgment of Indemnitor (x) would result in the disclosure of any trade secrets of any Person or violate any confidentiality obligation of the Company, (y) would jeopardize protections afforded to the Indemnitor under the attorney-client privilege or the attorney work product doctrine (or similar protections or privileges), (z) would reasonably, on the advice of counsel (including in-house counsel), violate applicable Legal Requirements); and
(bc) In Purchaser shall have the event right to settle, adjust or compromise such claim or Legal Proceeding which includes (x) no liability or the creation of any obligation on the part of any Indemnitor other than a claim for Damages, (y) no acceptance or admission of guilt or responsibility of any Indemnitor and (z) a release of each Indemnitor from liabilities and obligations arising out of such third party claim (other than any claim for Damages hereunder); provided, however, that if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Sellers’ Representative or, solely with respect to any indemnification pursuant to Section 11.2(b) or any claim alleging or asserting any criminal liability of any Indemnitor, the applicable, Indemnitors, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding (it being understood that: (i) if Purchaser requests such consent to a settlement, adjustment or compromise, then the Sellers’ Representative or, solely with respect to any indemnification pursuant to Section 11.2(b) or any claim alleging or asserting any criminal liability of any Indemnitor, the applicable, Indemnitors, shall not unreasonably withhold, condition or delay such consent; (ii) such consent with respect to any settlement, adjustment or compromise of any such claim or Legal Proceeding shall be deemed to have been given unless the Sellers’ Representative shall have objected within fifteen Business Days after a written request for such consent by Purchaser; and (iii) if the Sellers’ Representative or, solely with respect to any indemnification pursuant to Section 11.2(b) or any claim alleging or asserting any criminal liability of any Indemnitor, the applicable, Indemnitors, has consented to or deemed to have consented to any settlement, adjustment or compromise, then the Indemnitors shall have no power or authority to object under any provision of this Section 11 to the amount of such settlement, and the Indemnitees shall be entitled to recover the entire amount of such settlement and all other Damages relating to such claim or Legal Proceeding from the Indemnitors, subject to Section 11.3); provided, further that consent shall be required from any indemnitor with respect to any settlement not permitted in accordance with clauses (x)-(z) and, notwithstanding the foregoing such consent can be withheld for any reason with respect to any claim alleging or asserting any criminal liability of the Indemnitor. If Purchaser does not assume elect to proceed with the defense of any such claim or Legal Proceeding, then the Sellers’ Representative may proceed with the defense of such Third Party Claim in accordance claim or Legal Proceeding at the expense of the Indemnitors with this Section 10.6counsel reasonably satisfactory to Purchaser; provided, however, that the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative may not settle, adjust or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims such claim or Legal Proceeding without the prior written consent of Purchaser (which consent may not be unreasonably withheld, conditioned or delayed). Purchaser shall give the Sellers’ Representative prompt prior written notice of the commencement of any Legal Proceeding against Purchaser or the applicable Company with respect to which Purchaser Indemniteeintends to demand indemnification from the Indemnitors; provided, as however, that any failure on the case may be, such consent not part of Purchaser to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but so notify the Sellers’ Representative shall be entitled to control not limit any of the defense unless obligations of the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Indemnitors under this Section 11 (except to the particular matter.
(e) If the Sellers’ Representative undertakes extent such failure materially prejudices the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsuch Legal Proceeding).
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, 340B OpCo, PHSS, any Blocker Entity, Purchaser or any other Person) with respect to which the Sellers any Seller may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 11, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Legal Proceeding on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative Representative. If Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article XSection 11, Purchaser may seek recovery of all reasonable expenses relating to the defense of such Third Party Claim shall be borne claim or Legal Proceeding (and paid exclusively by the applicable indemnifying Seller; andall amounts due pursuant to any settlement, adjustment or compromise of such claim or Legal Proceeding) as Damages;
(iib) if each Seller shall, to the Sellers’ Representative proceeds with the defense of any such Third Party Claimextent legally permitted to do so, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Purchaser any documents and materials in their such Seller’s possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense claim or Legal Proceeding; provided, however, that (i) unless otherwise required to do so by applicable court, arbitration or other legal proceeding procedures, no Seller shall, solely by reason of this Section 11.8(b), be required to produce any such Third Party Claim, documents or materials to the applicable indemnifying extent related to a dispute between such Seller and any Indemnitee or Purchaser or (ii) no Seller shall make available be required to Purchaser produce any such documents or materials to the extent that such Seller has been advised by a reputable law firm with offices in the United States in writing that such provision would waive or materially impair such Seller’s ability to assert attorney-client or other legal privilege with respect to such documents and materials even with a joint defense or common interest agreement in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.place; and
(c) The Sellers’ Representative Purchaser shall have the right to settle, adjust or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims such claim or Legal Proceeding without the prior written consent of the Sellers’ Representative or any Seller; provided, however, that if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the applicable consent of the Sellers’ Representative, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding (it being understood that if Purchaser Indemniteerequests that the Sellers’ Representative or any Seller consent to a settlement, as adjustment or compromise, neither the case may beSellers’ Representative nor any Seller shall unreasonably withhold, delay or condition such consent not to be unreasonably withheld, delayed, or conditionedconsent).
(d) If Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Sellers’ Representative assumes may proceed with the defense of such third party claim in accordance or Legal Proceeding with this Section 10.6counsel reasonably satisfactory to Purchaser; provided, however, that the Sellers’ Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Purchaser (which consent may not be unreasonably withheld, delayed or conditioned). Purchaser shall give the Sellers’ Representative prompt notice of the commencement of any such Legal Proceeding against Purchaser, the applicable Company, 340B OpCo, PHSS or any Blocker Entity; provided, however, that any failure on the part of Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but so notify the Sellers’ Representative shall be entitled to control not limit any of the defense unless obligations of the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Sellers under this Section 11 (except to the particular matter.
(e) If the Sellers’ Representative undertakes extent such failure materially prejudices the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsuch Legal Proceeding).
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement Upon receipt by any Person, other than a party hereto, Indemnitee of notice of any claim actual or Proceeding (whether possible Action that has been or may be brought or asserted by a third party against the Company, Purchaser or any other Person) with respect such Indemnitee and that may be subject to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X indemnification hereunder (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that Indemnitee shall promptly deliver a Claim Certificate with respect to such Third-Party Claim to the applicable Seller Equityholders Representative. The Indemnitee shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then have the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteeon its own. If the Sellers’ Representative Indemnitee so proceeds with the defense of any such Third Third-Party Claim:
(ia) subject the Equityholders Representative shall, and shall use commercially reasonable efforts to the other provisions of this Article Xcause each Equityholder to, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Indemnitee any documents and materials in their its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Third-Party Claim; and
(b) Indemnitee shall have the right to control, settle, adjust or compromise such Third-Party Claim without the consent of the Equityholders Representative; provided, however, that except with the consent of the Equityholders Representative (which consent shall not be unreasonably withheld, conditioned or delayed), no settlement of any such Third-Party Claim shall be determinative of either the fact that Liability may be recovered by the applicable Indemnitee in respect of such Third-Party Claim pursuant to the indemnification provisions of this Article IX or the amount of such Liability that may be recovered by the applicable Indemnitee in respect of such Third-Party Claim pursuant to the indemnification provisions of this Article IX. If the Purchaser proceeds Equityholders Representative consents to such settlement, the Equityholders Representative (on behalf of the Equityholders) will not have any power or authority to object to the amount or validity of any claim by or on behalf of an Indemnitee for indemnity with respect such settlement. The Indemnitee shall give the defense Equityholders Representative prompt notice of the commencement of any such Third Third-Party Claim; provided, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaserhowever, that may be necessary any failure on the part of Indemnitee to so notify the Equityholders Representative shall not limit any of the obligations of the Equityholders under this Article IX (except to the extent such failure materially prejudices the defense of such Third Third-Party Claim).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Vir Biotechnology, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against Purchaser, the Company, Purchaser Company or any other Person) with respect to which the Sellers any Shareholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)7, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Legal Proceeding on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteethe Majority Shareholders. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X7, all reasonable expenses relating to the defense defence of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andShareholder Indemnitors;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller each Shareholder Indemnitor shall make available to Purchaser any documents and materials in their his possession or control, reasonably requested by Purchaser, control that may be necessary to the defense defence of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest claim or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.Legal Proceeding; and
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the rightright to settle, but adjust or compromise such claim or Legal Proceeding; provided, however, that if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the Consent of Majority Shareholders, such settlement, adjustment or compromise shall not be conclusive evidence of the obligation, to participate at its own expense in defense thereof by counsel amount of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently Damages incurred by the Purchaser Indemnitee in connection with such claim or Legal Proceeding (it being understood that if Purchaser requests that the defense thereof.
Shareholders consent to a settlement, adjustment or compromise, the Shareholders shall not unreasonably withhold or delay such Consent). Purchaser shall give the Shareholders prompt notice of the commencement of any such Legal Proceeding against Purchaser or the Company; provided, however, that any failure on the part of Purchaser to so notify the Shareholders shall not limit any of the obligations of the Shareholder Indemnitors under Article 7 (f) except to the extent such failure materially prejudices the defence of such Legal Proceeding). If the Sellers’ Representative undertakes Purchaser does not elect to proceed with the defense defence of any Third Party Claim in accordance with this Section 10.6such claim or Legal Proceeding, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection Shareholder may proceed with the defense thereofdefence of such claim or Legal Proceeding with counsel reasonably satisfactory to Purchaser; provided, however, that the Shareholder may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written Consent of Purchaser (which Consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Share Purchase Agreement (Trillium Therapeutics Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Indemnitee or against any other Person) with respect to which any of the Sellers Selling Shareholders may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 4, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Selling Shareholders. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Agent to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Agent any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, unless the amount of such settlement is less than the remaining Value of the Indemnity Shares at that time, and a complete and final release is obtained in favor of the Purchaser and the Company, if applicable; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own: (i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Selling Shareholders; (ii) the Selling Shareholders shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Selling Shareholders that may be necessary to the defense of such Third Party Claim.
claim or Proceeding; (biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Agent informed of all material developments and events relating to such claim or Proceeding; and (iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; PROVIDED, HOWEVER, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding Action (whether against the CompanySurviving Corporation, Purchaser Buyer or any other Person) with respect to which the Sellers Indemnifying Parties may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee Indemnified Party pursuant to this Article X (a “Third Party Claim”)IX, if Buyer shall defend such claim or Action on its own with counsel reasonably satisfactory to the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Securityholder Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Securityholder Representative shall be entitled, at the Indemnifying Parties’ expense, to participate in, but not have the right to assume determine or conduct, the defense of such Third Party Claim if claim or Action and Buyer shall keep the Securityholder Representative reasonably apprised of any material development in such Third Party ClaimAction, if determined adversely and promptly provide to Purchaser Indemniteethe Securityholder Representative copies of all pleadings, would be likely notices and communications with respect to result in injunctions, equitable remedies such claim or reputational damage in respect Action to the extent that receipt of such Purchaser Indemniteedocuments does not waive any privilege. If In the Sellers’ Representative proceeds with the defense event of any such Third Party Claimclaim or Action:
(ia) subject to the other provisions of this Article XIX, all reasonable expenses relating to the defense of such Third Party Claim claim or Action (and all reasonable amounts due pursuant to any settlement, adjustment or compromise of such claim or Action) shall be borne and paid exclusively by the applicable indemnifying SellerIndemnifying Parties to the extent that either (i) it is determined according to the procedures in this Article IX that such claim or Action (or the matters underlying such claim or Action) constitutes an indemnifiable matter under Section 9.2 or (ii) Buyer and the Securityholder Representative otherwise agree in writing that such costs and expenses shall constitute indemnifiable Losses; provided, that the absence of a final determination (including by a Governmental Entity or an arbitrator) with respect to such claim or Action shall not prejudice or otherwise affect the determination as to whether such claim or Action arose out of, resulted from, or was in connection with a matter listed in Section 9.2; and
(iib) Buyer shall have the right to settle, adjust or compromise such claim or Action without the consent of the Securityholder Representative (it being understood that if Buyer requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent; provided, that the Securityholder Representative may withhold consent to any requested settlement, adjustment or compromise if the Sellers’ Securityholder Representative proceeds believes in good faith that there is not any underlying basis for indemnification under this Article IX with respect to such settlement, adjustment or compromise); provided, however, that if Buyer settles, adjusts or compromises any such claim or Action without the defense consent of the Securityholder Representative, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Losses incurred by the Indemnified Party in connection with such claim or Action or that such Losses are indemnifiable hereunder. Buyer shall give the Securityholder Representative prompt notice of the commencement of any such Third Party ClaimAction against Buyer, Purchaser and Merger Sub or the Purchaser Indemnitee Company; provided, however, that any failure on the part of Buyer to so notify the Securityholder Representative shall make available not limit any of the obligations of the Indemnifying Parties under this Article IX (except to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to extent such failure materially prejudices the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party ClaimAction).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, Person other than a party hereto, Purchaser of any claim claim, Proceeding or Proceeding the imposition of any penalty or assessment (whether against the Company, Purchaser its subsidiaries, the Purchaser, or any other Person) with respect to which the Sellers Seller may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 9 (a “Third Party Claim”), if the Sellers’ Representative agrees that Purchaser shall give the applicable Seller prompt written notice of the commencement of any such Third Party Claim.] The Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then have the Sellers’ Representativeright, at its electionelection and its expense, shall be entitled to defendassume and control the defense and settlement of such Third party Claim, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and provided that it notifies the Purchaser and of its decision to do so within 10 (ten) Business Days upon its receipt of written notice from the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim, and for such purpose will be provided from time to time with such powers of attorney and other documents as required for the conduct of such defense by the Seller and its legal counsels subject to the Seller entering into a confidentiality agreement with respect to such information containing customary confidentiality obligations and use restrictions; provided, however, that the Seller may not elect to assume or control the defense, appeal or settlement of any Third Party Claim if unless: (a) the sole remedy sought by the plaintiff in such Third Party Claim is monetary damages, (b) the Seller acknowledges and agrees in writing that any Damages relating to such Third Party Claim constitute Damages under this Section 9, and (c) such Third Party Claim, if determined adversely to Purchaser Indemniteedetermined, would not otherwise be likely reasonably expected to result Materially Adversely Affect the Purchaser or any of its Affiliates or Representatives. Notwithstanding the Seller’s election to assume the defense, appeal or settlement of a Third Party Claim, the Indemnitee shall have the right to employ separate counsel and to participate in injunctions, equitable remedies the defense or reputational damage in respect investigation of such Third Party Claim at its own cost and expense. The Seller and the Purchaser Indemniteeshall reasonably cooperate in any such defense, appeal or settlement proceedings, and give each other reasonable access to all information relevant thereto, subject to the parties entering into a confidentiality agreement with respect to such information containing customary confidentiality obligations and use restrictions. If the Sellers’ Representative proceeds with Seller is not entitled, or does not timely elect, to assume and control the defense defense, appeal or settlement of any such a Third Party Claim:
(i) 9.8.1. subject to the other provisions of this Article XSection 9, all reasonable expenses relating to the defense of such Third Party Claim (and all amounts due pursuant to any settlement, adjustment or compromise of such Third Party Claim) shall be borne and paid exclusively by the applicable indemnifying Seller; and;
(ii) if 9.8.2. the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Seller shall make available to the Sellers’ Representative Purchaser any documents and materials in their its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such claim or Legal Proceeding; and
9.8.3. the Purchaser, or the relevant Indemnitee or the relevant Affiliate thereof (as the case may be) shall control the conduct of the Third Party Claim. If Claim but shall not have the Purchaser proceeds with the defense of any right to settle, adjust or compromise such Third Party ClaimClaim without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed).
9.8.4. For the avoidance of doubt, failure on the applicable indemnifying part of the Purchaser to notify the Seller of any Third Party Claim subject to this Section 9.8, shall make available to Purchaser not limit any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary of the obligations of the Seller under Section 9 (except to the defense of extent such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume failure materially prejudices the defense of such Third Party Claim in accordance with this Section 10.6by the Seller).
9.8.5. The Seller may not settle, adjust or compromise any Third Party Claim regarding which it assumes the Purchaser Indemnitee shall have the rightdefense, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise appeal or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, (such consent not to be unreasonably withheld, withheld or delayed). If an Indemnitee requests that the Seller, or conditioned.
(d) If the Sellers’ Representative assumes Seller requests the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligationor any Indemnitee, to participate at its own expense in defense thereof by counsel of its own choosingconsent to a settlement, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense adjustment or compromise of any Third Party Claim in accordance with this Section 10.6which the requested party or any Affiliate thereof conducts the defense, appeal or settlement, the Purchaser Indemnitee requested party shall notnot unreasonably withhold or delay such consent. The Parties shall act in good faith in responding to, so long as the Sellers’ Representative does not abandon the defense thereofdefending against, be entitled to recover from the applicable indemnifying Seller, any legal settling or other expenses subsequently incurred by the Purchaser Indemnitee in connection otherwise dealing with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any all Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaims.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanySeller, Purchaser against any other Indemnitee or against any other Person) with respect to which any of the Sellers Stockholders may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Stockholders. If Purchaser so elects to designate the Sellers’ Representative proceeds with Agent to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Agent shall proceed to the other provisions of this Article X, all reasonable expenses relating defend such claim or Proceeding in a diligent manner with counsel satisfactory to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Agent any non-privileged documents and materials in their the possession or control, reasonably requested by the Sellers’ Representative, of Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Agent shall keep Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of Purchaser, not to be unreasonably withheld; and
(f) Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, Purchaser elects to assume such defense), Purchaser may proceed with the defense of such claim or Proceeding on its own. If Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by Purchaser) shall be borne and paid exclusively by the Stockholders;
(ii) the Stockholders shall make available to Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Stockholders that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In Purchaser shall keep the event Agent informed of all material developments and events relating to such claim or Proceeding;
(iv) Agent shall have the Sellers’ Representative does not assume right to participate in the defense of such Third Party Claim in accordance claim or Proceeding with this Section 10.6, the ▇▇▇▇ Moss Kline & ▇▇▇▇▇ LLP as counsel; and
(v) Purchaser Indemnitee shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchasers, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if the Sellers’ Representative agrees that Purchasers shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If the Sellers’ Representative proceeds with Purchasers so elect to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchasers;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Purchasers shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchasers that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep the Purchasers informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchasers shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchasers; and
(f) the Purchasers may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser proceeds Purchasers do not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, the Purchasers elect to assume such defense), the Purchasers may proceed with the defense of such claim or Proceeding on its own. If the Purchasers so proceed with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by the Purchasers) shall be borne and paid exclusively the Seller;
(ii) the Seller shall make available to Purchaser the Purchasers any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event Purchasers shall keep the Sellers’ Representative does not assume Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee Purchasers shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Seller; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Seller shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, The Indemnifying Person shall be entitled to defendparticipate in the defense of any Third-Party Claim for which it may be obligated to indemnify any Indemnified Person and, contest or otherwise protect to the extent that it wishes (unless (i) the Indemnifying Person is also a Person against any such Proceeding at whom the expense of the applicable Seller, Third-Party Claim is made and the Purchaser Indemnified Person determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Person fails to provide reasonable assurance to the Indemnified Person of its financial capacity to defend such Third-Party Claim and the Purchaser Indemnitee must cooperate in any provide indemnification with respect to such defense or other action. Notwithstanding the foregoingThird-Party Claim), the Sellers’ Representative shall not have the right to assume the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating Indemnified Person. After notice from the Indemnifying Person to the defense Indemnified Person of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available its election to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Third-Party Claim in accordance with this Section 10.6Claim, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Sellers’ Representative does not abandon Indemnified Person under this Article 1 for any fees of other counsel or any other expenses with respect to the defense thereofof such Third-Party Claim, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses in each case subsequently incurred by the Purchaser Indemnitee Indemnified Person in connection with the defense thereof.
(f) of such Third-Party Claim, other than reasonable costs of investigation. If the Sellers’ Representative undertakes Indemnifying Person assumes the defense of a Third-Party Claim, no compromise or settlement of such Third-Party Claims may be effected by the Indemnifying Person without the Indemnified Person’s consent unless (A) there is no finding or admission of any Third violation of law or any violation of the rights of any other person or entity; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (C) the Indemnified Person shall have no liability with respect to any compromise or settlement of such Third-Party Claims effected without its consent. If notice is given to an Indemnifying Person of the assertion of any Third-Party Claim in accordance with pursuant to this Section 10.6Agreement and the Indemnifying Person does not, within ten (10) days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of such Third-Party Claim, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, Indemnifying Person will be entitled to recover from the applicable indemnifying Seller, bound by any legal determination made in such Third-Party Claim or other expenses subsequently incurred any compromise or settlement effected by the Purchaser Indemnitee in connection with the defense thereofIndemnified Person.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, that Acquirer becomes aware of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be which Acquirer believes in good faith is reasonably likely to result in injunctionsa claim against the Escrow Fund by or on behalf of an Indemnified Person, equitable remedies or reputational damage Acquirer shall have the right in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of its sole discretion, to defend and to resolve any such Third Third-Party Claim:
; provided, however, that if Acquirer determines to defend and/or to resolve any such Third-Party Claim, that Acquirer shall (i) subject to first consult with the other provisions of this Article XRepresentative regarding such defense and/or resolution, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any use its best efforts, in good faith, to defend and/or resolve such Third Third-Party Claim, Purchaser (iii) and the Purchaser Indemnitee shall make available to settlement or resolution, and the Sellers’ Representative any documents costs and materials expenses incurred by Acquirer in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the connection with such defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and all amounts paid experts’ fees and court or arbitration costs) will not be determinative of Damages for which Acquirer may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder, except as a result of such Proceeding or the compromise or settlement thereofset forth below.
(cb) The Sellers’ Representative will have the right to receive copies of all pleadings, notices and communications with respect to any Third-Party Claim to the extent that receipt of such documents by the Representative does not affect any privilege relating to the Indemnified Person and shall have the right to participate in (at its own expense), but not determine or the Purchaser Indemniteeconduct, as the case may be, shall not compromise and settle any indemnifiable matters related defense of any Third-Party Claim or settlement negotiations with respect to Third any such Third-Party Claims without Claim. Except with the prior written consent of the Sellers’ Representative Representative, no settlement or resolution by Acquirer of any Third-Party Claim that may give rise to a claim against the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, Escrow Fund by or conditioned.
(d) If the Sellers’ Representative assumes the defense on behalf of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative an Indemnified Person shall be entitled determinative of the existence of or amount of indemnifiable Damages relating to control such matter; provided, further, that only if the defense unless Representative has consented in writing to any such settlement, then the Purchaser Indemnitee has relieved Representative will be deemed to have accepted the applicable indemnifying Seller related Claim by any Indemnified Person for indemnification pursuant to Section 11.3 but only for the amount (if any) set forth in such consent, and the Effective Time Holders will remain responsible to indemnify the Indemnified Persons for all Damages they may incur arising out of, resulting from liability with respect or caused by the Third-Party Claim to the particular matterfullest extent provided in this Article 11.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Interwoven Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the any Acquired Company, Purchaser or any other Person) with respect to which the Sellers any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 11 (a “Third Party Claim”including any claim or Legal Proceeding by or before any Governmental Entity relating to any Liability relating to Taxes of any Acquired Company), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its electionelection in its sole discretion, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeLegal Proceeding on its own. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding, then:
(i) subject to the other provisions of this Article X, all All reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the Indemnitors pursuant to such Indemnitors’ Pro Rata Share (and in the case of an Individual Claim, shall by borne and paid exclusively by the applicable indemnifying Seller; andIndemnitor);
(ii) if the Sellers’ Representative proceeds with (on behalf of the defense Indemnitors or in the case of any such Third Party an Individual Claim, the Indemnitor) shall be entitled to participate (and Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by cooperate with the Sellers’ Representative, that may be necessary to ) in the defense of such Third Party Claim. If claim or Legal Proceeding, at the Purchaser proceeds with expense of the defense Indemnitors or in the case of any such Third Party an Individual Claim, the applicable indemnifying Seller Indemnitor, and appoint separate legal counsel of its choice for such purpose;
(iii) each Indemnitor shall make available to Purchaser any documents and or other materials in their such Indemnitor’s possession or control, reasonably requested by Purchaser, control or in the control of any of such Indemnitor’s Representatives that may be necessary or otherwise relevant to the defense of such Third Party claim or Legal Proceeding; and
(iv) Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Sellers’ Representative, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding or whether an Indemnitee is entitled to be indemnified, held harmless, reimbursed or compensated hereunder (it being understood that: (i) if Purchaser requests that the Sellers’ Representative consent to a settlement, adjustment or compromise, then the Sellers’ Representative shall not unreasonably withhold, condition or delay such consent; (ii) the consent of the Sellers’ Representative with respect to any settlement, adjustment or compromise of any such claim or Legal Proceeding shall be deemed to have been given unless the Sellers’ Representative shall have objected within twenty (20) days after a written request for such consent by Purchaser; and (iii) if the Sellers’ Representative has consented to or deemed to have consented to any settlement, adjustment or compromise, then the Indemnitors shall have no power or authority to object under any provision of this Section 11 to the amount of such settlement, and the Indemnitees shall be entitled to recover the entire amount of such settlement and all other Damages relating to such claim or Legal Proceeding from the Indemnitors, or in the case of an Individual Claim, the Indemnitor); provided, however that the Purchaser shall not have the right to settle any Individual Claim against Indemnitee without the consent of the applicable Indemnitor, except to the extent the terms of such settlement include a full release of Indemnitor by the claimant from all liabilities or potential liabilities under such claim.
(b) In If Purchaser does not elect to proceed with the event defense of any such claim or Legal Proceeding, then the Sellers’ Representative does not assume may proceed with the defense of such Third Party Claim claim or Legal Proceeding at the expense of the Indemnitors with counsel reasonably satisfactory to Purchaser (or in accordance the case of an Individual Claim, such applicable Indemnitor may proceed with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result defense of such claim or Legal Proceeding or at the compromise or settlement thereof.
(c) The expense of such Indemnitor); provided, however, that the Sellers’ Representative (or the Purchaser IndemniteeIndemnitor, as the case applicable) may benot settle, shall not adjust or compromise and settle any indemnifiable matters related to Third Party Claims such claim or Legal Proceeding without the prior written consent of Purchaser (which consent may not be unreasonably withheld, conditioned or delayed). Purchaser shall give the Sellers’ Representative prompt notice of the commencement of any Legal Proceeding against Purchaser or the applicable Company with respect to which Purchaser Indemniteeintends to demand indemnification from the Indemnitors; provided, as however, that any failure on the case may be, such consent not part of Purchaser to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but so notify the Sellers’ Representative shall be entitled to control not limit any of the defense unless obligations of the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Indemnitors under this Section 11 (except to the particular matter.
(e) If the Sellers’ Representative undertakes extent such failure materially prejudices the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsuch Legal Proceeding).
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the any Acquired Company, Purchaser or any other Person) with respect to which the Sellers any Indemnitor may become obligated to hold harmless, indemnify, compensate indemnify or reimburse any Purchaser Indemnitee pursuant to this Article X Section 11 (a “Third Party Claim”including any claim or Legal Proceeding by or before any Governmental Entity relating to any Liability relating to Taxes of any Acquired Company), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its electionelection in its sole discretion, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeLegal Proceeding on its own. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claim:
claim or Legal Proceeding, then: (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by constitute Damages of the applicable indemnifying SellerIndemnitees; and
(ii) if the Sellers’ Representative proceeds with (or, in the case of a Specified Tax Indemnity Claim, the Specified Tax Indemnitors) shall be entitled to participate in the defense of any such Third Party claim or Legal Proceeding at the expense of the Indemnitors (or, in the case of a Specified Tax Indemnity Claim, Purchaser and at the Purchaser Indemnitee shall make available to expense of the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by Specified Tax Indemnitors) with a counsel of the Sellers’ Representative’s choice (or, that may be necessary to in the defense case of such Third Party Claim. If a Specified Tax Indemnity Claim the Specified Tax Indemnitors’ choice,) and, if so elected by Sellers’ Representative, Purchaser proceeds shall reasonably cooperate with Sellers’ Representative (or, in the defense case of any such Third Party a Specified Tax Indemnity Claim, the applicable indemnifying Seller Specified Tax Indemnitors) and shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the keep Sellers’ Representative does not assume (or, in the defense case of such Third Party Claim in accordance with this Section 10.6a Specified Tax Indemnity Claim, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(cSpecified Tax Indemnitors) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability timely informed with respect to any material issues and developments relating to such Legal Proceeding, including the particular matter.
(e) If the Sellers’ Representative undertakes the defense filing of any Third Party Claim in accordance with this Section 10.6notice, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal request or other expenses subsequently incurred by the Purchaser Indemnitee court document in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.such Legal Proceeding;
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, Purchaser Parent or against any other Person) with respect to which any of the Sellers Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)IX, if Parent shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeLegal Proceeding on its own. If the Sellers’ Representative Parent so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X, all reasonable out-of-pocket expenses relating to the defense of such Third Party Claim claim or Legal Proceeding by counsel reasonably satisfactory to the Shareholder Representative shall be borne and paid exclusively by from the applicable indemnifying Seller; andEscrowed Funds;
(iib) if the Sellers’ Representative proceeds with the defense of subject to any confidentiality restrictions to which any Indemnitor may be subject (provided that upon Parent’s request, any such Third Party ClaimIndemnitor will use its best efforts to have such confidentiality restrictions waived or rescinded for the benefit of Parent), Purchaser and the Purchaser Indemnitee each Indemnitor shall make available to the Sellers’ Representative Parent any documents and materials in their his, her or its possession or control, control that reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If claim or Legal Proceeding; and
(c) Parent shall have the Purchaser proceeds right to settle, adjust or compromise such claim or Legal Proceeding with the defense written consent of the Shareholder Representative; provided, however, that such consent shall not be unreasonably withheld.
(d) Parent shall give the Shareholder Representative prompt notice of the commencement of any such Third Party ClaimLegal Proceeding against Parent or the Company; provided, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaserhowever, that may be necessary any failure on the part of Parent to so notify the Shareholder Representative shall not limit any of the obligations of the Indemnitors under this Article IX (except to the extent such failure materially prejudices the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume Legal Proceeding). Parent shall conduct the defense of such Third Party Claim claim or Legal Proceeding diligently and in accordance with this Section 10.6, good faith using all reasonable means and defenses available to it or to the Purchaser Indemnitee Company. The Shareholder Representative shall have the right, but not if it so notifies Parent with reasonable promptness after receipt of Parent’s claim notice, to assist at its own expense and with counsel of its choice (in each case, consistent with Section 10.2) in the obligation, thereafter to defend, contest defense of such claim or otherwise protect Legal Proceeding by Parent (or in the case of a claim or Legal Proceeding against the same Company, by the Company). In such event, Parent shall afford the Shareholder Representative and make any compromise or settlement thereof its counsel a reasonable opportunity to comment and recover the entire cost thereof from right to object (which right shall not be unreasonably exercised) with respect to the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result conduct of the defense of such claim or Legal Proceeding. Parent shall keep the Shareholder Representative reasonably informed of the progress of any claim or Legal Proceeding and its defense, and shall with reasonable promptness provide the Shareholder Representative with copies of all material notices, written communications and filings (including court papers) made by or on behalf of any of the parties to the underlying claim or Legal Proceeding. Neither Parent nor any other Indemnitee may settle, adjust or compromise any claim or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims Legal Proceeding without the prior written consent of the Sellers’ Shareholder Representative or the applicable Purchaser Indemnitee, as the case (which consent may be, such consent not to be unreasonably withheld). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, delayed, or conditioned.
(d) If the Sellers’ Shareholder Representative assumes may proceed with the defense of such third party claim or Legal Proceeding with counsel reasonably satisfactory to Parent. In such case, Parent or such other Indemnitee will cooperate in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6such claim or Legal Proceeding and will provide reasonable access to documents, the Purchaser Indemnitee shall notassets, so long as the Sellers’ Representative does not abandon the defense thereofproperties, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred books and records reasonably requested by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Shareholder Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6and to all officers, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred directors and employees reasonably requested by the Purchaser Indemnitee in connection with Shareholder Representative for investigation, depositions and trial; provided, however, that the defense thereofShareholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of the Parent (which consent may not be unreasonably withheld).
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 7, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject The Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Seller;
(ii) the Seller shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Seller; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Seller shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Shaman Pharmaceuticals Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against Parent or the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if Parent and the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If Parent or the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to Parent and the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser Parent and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non- privileged documents and materials in their the possession of Parent or control, reasonably requested by the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep Parent and the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) Parent and the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed; and
(f) Parent and the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If Parent and the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, Parent or the Purchaser elects to assume such defense), Parent or the Purchaser may proceed with the defense of such claim or Proceeding on its own. If Parent or the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by Parent or the Purchaser) shall be borne and paid exclusively by the Seller;
(ii) the Seller shall make available to Parent or the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, Parent and the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) Parent and the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Seller; provided, however, that the Seller shall not unreasonably withhold or the applicable Purchaser Indemnitee, as the case may be, delay such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In The Purchaser shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and expenses incurred by the Purchaser Indemnitee must cooperate in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder.
(b) The Seller Representative shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by the Seller Representative does not affect any privilege relating to the Indemnified Person. At its option and expense, the Seller Representative shall be entitled to participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeSeller Representative, as the case may be, such which consent shall not to be unreasonably withheld, delayedconditioned or delayed and which shall be deemed to have been given unless the Seller Representative shall have objected within 15 days after a written request for such consent by the Purchaser. In the event that the Seller Representative has consented to any such settlement, none of the Seller or conditioned.
(d) If any Shareholder shall have any power or authority to object under any provision of this Article VIII to the Sellers’ Representative assumes the defense amount of such third party any claim in accordance with this Section 10.6by or on behalf of any Indemnified Person, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability or any Shareholder for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, against Purchaser or against any other Person) (a “Third Party Claim”) with respect to which the Sellers any Selling Shareholder may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)XI, if the Sellers’ Representative agrees that the applicable Seller Purchaser shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if claim or Proceeding on its own with counsel reasonably satisfactory to the Holder Representatives. In such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claimcase:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller each Participating Rights Holder shall make available to Purchaser any documents and materials in their his possession or control, reasonably requested by Purchaser, control that may be necessary to the defense of such Third Party Claim.claim or Proceeding; and
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the rightright to settle, but not the obligationadjust or compromise such claim or Proceeding; provided, thereafter to defendhowever, contest that if Purchaser settles, adjusts or otherwise protect against the same and make compromises any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may beHolder Representatives, such consent settlement, adjustment or compromise shall not to be unreasonably withheld, delayed, or conditioned.
(d) If conclusive evidence of the Sellers’ Representative assumes the defense amount of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently Damages incurred by the Purchaser Indemnitee in connection with such claim or Proceeding (it being understood that if Purchaser requests that the defense thereof.
Holder Representatives consent to a settlement, adjustment or compromise, the Holder Representatives shall not unreasonably withhold or delay such consent). Purchaser shall give the Holder Representatives prompt notice of the commencement of any such Proceeding against Purchaser or the Company and provide information reasonably requested by the Holder Representatives and not subject to attorney-client privilege of Purchaser or Purchaser’s Indemnitees relating to such claim; provided, however, that any failure on the part of Purchaser to so notify the Holder Representatives and provide such information shall not limit any of the obligations of the Participating Rights Holders under Article XI (f) If except to the Sellers’ Representative undertakes extent such failure materially prejudices the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred such Proceeding by the Purchaser Indemnitee in connection with the defense thereofHolder Representatives).
Appears in 1 contract
Defense of Third Party Claims. The Company Stockholders may elect to defend any Third Party Claim with counsel of their own choosing, reasonably acceptable to Compensated Person, within thirty (a30) In the event days after receipt of the assertion or commencement Notice of Claim by any Person, other than a party hereto, of any claim or Proceeding the Indemnification Representative (whether against the Company, Purchaser or any other Person) with respect “Election to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party ClaimDefend”), if the Sellers’ Representative agrees that the applicable Seller and shall indemnify such Purchaser Indemnitee for act reasonably and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if accordance with their good faith business judgment in handling such Third Party Claim, if determined adversely to Purchaser Indemnitee, would provided that no Third Party Claim may be likely to result in injunctions, equitable remedies or reputational damage in respect settled without the consent of the Compensated Person and provided that the Company Stockholders defend such Purchaser Indemniteeclaim actively and diligently. If the Sellers’ Representative proceeds with the defense of Company Stockholders choose not to defend any such Third Party Claim:
(i) subject Claim by failure to deliver the other provisions of this Article XElection to Defend or by failure to meet the conditions specified above, all reasonable expenses relating to the defense of Compensated Person may defend against such Third Party Claim shall be borne and paid exclusively by consent to the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense entry of any such judgment or enter into any settlement with respect to the Third Party Claim, Purchaser Claim in any manner it may deem appropriate and the Purchaser Indemnitee shall make available seek indemnification pursuant to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of this Article VIII for Damages resulting from such Third Party Claim in accordance with this Section 10.68.1 above. In addition, if the Purchaser Indemnitee shall Company Stockholders have assumed defense of the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without Claim and if a potential or actual conflict of interest shall exist or if different defenses shall be available between the prior written consent of Company Stockholders on one hand and the Sellers’ Representative or Compensated Person on the applicable Purchaser Indemniteeother, as then the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative Compensated Person shall be entitled to control retain separate legal counsel and submit the defense unless fees and expenses of such counsel as part of a Demand for Indemnification pursuant to Section 8.1. The Company Stockholders and the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Compensated Person shall make available to each other and their counsel and accountants all books and records and information relating to any Third Party Claim, keep each other fully apprised as to the particular matter.
(e) If details and progress of all proceedings relating thereto and render to each other such assistance as may be reasonably required to ensure the Sellers’ Representative undertakes the proper and adequate defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaim.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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Defense of Third Party Claims. (a) In If the event facts pertaining to the Loss arise out of the assertion or commencement by claim of any Person, third party (other than a party heretomember of the Merger Sub Group or the Shareholder Group, whichever is entitled to indemnification for such matter) and indemnification is available by virtue of the circumstances of the Loss, the Obligor shall assume and control the defense or the prosecution thereof, including the employment of counsel or accountants, at its cost and expense. The assumption of the defense of a Claim by the Obligor shall not be construed as an acknowledgment that the Obligor is liable to indemnify the Claimant in respect of such Claim, nor shall it constitute a waiver by the Obligor of any claim or Proceeding (whether defenses it may assert against the CompanyClaimant's claim for indemnification. The Claimant shall have the right to employ separate counsel in any such action and to participate in the defense thereof, Purchaser but the fees and expenses of such counsel shall be at the Claimant's expense unless (i) the employment has been specifically authorized by the Obligor in writing, (ii) the Obligor has improperly failed to assume the defense and employ counsel, or (iii) the named parties to any other Personaction (including any impleaded parties) with respect include the Claimant, and the Claimant has been advised by such counsel in writing that representation of the Claimant and the Obligor by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them (in which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)case, if the Sellers’ Representative agrees Claimant notifies the Obligor in writing that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled Claimant elects to defend, contest or otherwise protect against any such Proceeding employ separate counsel at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoingObligor, the Sellers’ Representative Obligor shall not have the right no obligation to assume the defense of such Third Party Claim if action on behalf of the Claimant). Whether or not the Obligor chooses to so defend or prosecute any such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result all the Parties hereto shall cooperate in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense or prosecution thereof and shall furnish such records, materials, information, witnesses and testimony, and attend such conferences, discovery proceedings, hearings, trials, and appeals, as may be reasonably requested in connection therewith. The Obligor shall not be liable for any settlement of any such Third Party Claim:
(i) subject to the other provisions of this Article XClaim effected without its prior written consent, all reasonable expenses relating to the defense of such Third Party which shall not be unreasonably withheld, delayed or conditioned. No third-party Claim shall may be borne and paid exclusively settled by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims Obligor without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeClaimant, as the case may be, such which consent shall not to be unreasonably withheld. In the event that it is ultimately determined that the Obligor is not obligated to indemnify, delayed, defend or conditioned.
(d) If hold the Sellers’ Representative assumes Claimant harmless from and against the defense of such third third-party claim in accordance with this Section 10.6Claim, the applicable Purchaser Indemnitee Claimant shall have reimburse the right, but not the obligation, to participate at its own expense in defense thereof by counsel Obligor for any and all costs and expenses (including reasonable attorneys' fees and costs of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(esuit) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee Obligor in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the its defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofthird-party Claim.
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Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Promptly after Acquiror obtains knowledge of any claim actual or Proceeding (whether possible claim, demand, suit, action, arbitration, investigation, inquiry or proceeding that has been or may be brought or asserted by a third party against the Company, Purchaser Acquiror or any of Acquiror’s Subsidiaries or other Person) with respect Affiliates and that may be subject to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X indemnification hereunder (a “Third Third-Party Claim”), if Acquiror shall promptly give notice of such Third-Party Claim to the SellersStockholders’ Representative agrees that Committee, stating the applicable Seller nature and basis of such Third-Party Claim and the dollar amount of such Third-Party Claim, to the extent known. The Stockholders’ Committee shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then have the Sellers’ Representative, right at its election, shall be entitled exercisable at any time prior to defend, contest or otherwise protect against any such Proceeding at the expense 30th day after the Stockholders’ Committee obtains knowledge of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, to defend any Third-Party Claim (other than a Third-Party Claim that, if determined adversely decided in a manner adverse to Purchaser IndemniteeAcquiror or any of the other Acquiror Indemnified Parties, would be likely to could reasonably result in injunctionseither an obligation to pay monetary damages in an amount greater than the aggregate cash amount remaining in the Escrow Fund and available to pay such damages or would materially adversely affect any of the Acquiror Indemnified Parties or their respective businesses), equitable remedies or reputational damage in respect which case: (i) Stockholders’ Committee shall diligently and in good faith defend such Third-Party Claim; (ii) the attorneys’ fees of counsel reasonably acceptable to Acquiror (approval of such Purchaser Indemnitee. If counsel not to be unreasonably withheld), other professionals’ and experts’ fees and court or arbitration costs incurred by the SellersStockholders’ Representative proceeds Committee in connection with defending such Third-Party Claim shall be payable from the Escrow Fund, without the requirement of any consent or approval by Acquiror; (iii) Acquiror shall not be entitled to be indemnified (from the Escrow Fund or otherwise) for any costs or expenses incurred by Acquiror in connection with the defense of any such Third Third-Party Claim:
; (iiv) subject Acquiror shall be entitled to monitor such defense at its expense; (v) Acquiror shall make available to the Stockholders’ Committee all books, records and other provisions documents and materials that are under the direct or indirect control of this Article X, all reasonable expenses relating to Acquiror or any of its Subsidiaries or other Affiliates and that the Stockholders’ Committee considers necessary or desirable for the defense of such Third Third-Party Claim Claim; (vi) Acquiror shall be borne execute such documents and paid exclusively take such other actions as the Stockholders’ Committee may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Third-Party Claim; (vii) Acquiror shall otherwise fully cooperate as reasonably requested by the applicable indemnifying Seller; and
(ii) if the SellersStockholders’ Representative proceeds with Committee in the defense of such Third-Party Claim; (viii) Acquiror shall not admit any liability with respect to such Third-Party Claim; and (ix) the Stockholders’ Committee shall not enter into any settlement agreement providing for the settlement of such Third-Party Claim without the prior written consent of Acquiror (which consent shall not be unreasonably withheld) if such settlement agreement imposes on Acquiror or any of its Subsidiaries or other Affiliates any obligation, other than an obligation to pay monetary damages in an amount less than the aggregate cash amount remaining in the Escrow Fund and available to pay such damages. If the Stockholders’ Committee elects not to defend such Third-Party Claim or otherwise fails or is unable or unwilling to defend such Third Party Claim, Purchaser and then Acquiror shall have the Purchaser Indemnitee shall make available right at its election, at any time, to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of defend such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Third-Party Claim, in which case the provisions of clauses (ii)-(viii) set forth above in this Section 8.2(d) *Confidential Treatment Requested. Omitted portions filed with the Commission. shall not be applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee and Acquiror shall have the rightright to settle and compromise such Third-Party Claim, but not the obligation, thereafter provided that Acquiror shall have no right to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result seek indemnification under this Section 8 in respect of such Proceeding or the compromise or Third-Party Claim for any settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims entered into without the prior written consent of the SellersStockholders’ Representative or the applicable Purchaser IndemniteeCommittee, as the case may be, such which consent shall not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyMS, Purchaser against any other Indemnitee or against any other Person) with respect to which any of the Sellers Selling Shareholders may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 6, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Selling Shareholders. If the Sellers’ Representative Purchaser so elects to designate the Agent to assume the defense of any such claim or Proceeding:
(a) the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the Purchaser;
(b) the Purchaser shall make available to the Agent any non-privileged documents and materials in the possession of the Purchaser that may be necessary to the defense of such claim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser, at its own expense, shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld if the settlement includes a general release of MS and the Purchaser, involves no prohibition or restriction on the use of any asset of MS or Purchaser or the conduct of any business by MS or Purchaser and requires no payment from the Purchaser or MS); and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claimclaim or Proceeding on its own:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the applicable indemnifying Seller; andSelling Shareholders;
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Selling Shareholders shall make available to the Sellers’ Representative Purchaser any non-privileged documents and materials in their the possession or control, reasonably requested by control of any of the Sellers’ Representative, Selling Shareholders that may be necessary to the defense of such Third Party Claim. If claim or Proceeding;
(iii) the Purchaser proceeds with shall keep the defense Agent informed of any all material developments and events relating to such Third Party Claimclaim or Proceeding;
(iv) the Agent, at its own expense, shall have the applicable indemnifying Seller shall make available right to Purchaser any documents and materials participate in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.claim or proceeding; and
(bv) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the rightright to settle, but not the obligation, thereafter to defend, contest adjust or otherwise protect against the same and make any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without with the prior written consent of the Sellers’ Representative or Agent; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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Defense of Third Party Claims. Any Person making a claim for indemnification under Section 8.02 or Section 8.03 (aan “Indemnitee”) In shall notify the event indemnifying party (an “Indemnitor”) and the Representative (on behalf of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”Common Security Holders), if applicable, of the Sellers’ Representative agrees that claim in writing promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party), describing the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, amount thereof (if known and quantifiable) and the basis thereof. Any Indemnitor shall be entitled to defendparticipate in the defense of such action, contest lawsuit, proceeding, investigation or otherwise protect against any other claim giving rise to an Indemnitee’s claim for indemnification at such Proceeding at the expense of the applicable SellerIndemnitor’s expense, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative at its option shall not have the right be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense. Any Indemnitor shall continue to be entitled to assert any limitation on any claims contained herein, and the Indemnitee shall be entitled to participate in the defense of such Third Party Claim if claim and to employ counsel of its choice for such Third Party Claim, if determined adversely to Purchaser purpose at the Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee’s expense. If the Sellers’ Representative proceeds with Indemnitor shall control the defense of any such Third Party Claim:
(i) subject to claim then the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim Indemnitor shall be borne and paid exclusively by the applicable indemnifying Sellerentitled to settle such claim; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimprovided, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claimthat, the applicable indemnifying Seller Indemnitor shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without obtain the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such Indemnitee (which consent shall not to be unreasonably withheldwithheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, delayed, pursuant to or conditioned.
(d) If the Sellers’ Representative assumes the defense as a result of such third party claim in accordance with this Section 10.6settlement or cessation, injunctive or other equitable relief will be imposed against the applicable Purchaser Indemnitee shall have or if such settlement does not expressly and unconditionally release the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability all liabilities and obligations with respect to such claim, without prejudice. The Representative (on behalf of the particular matter.
(eCommon Security Holders) shall act on behalf of all Indemnitors in the case of all third party claims with respect to which the Purchaser is seeking indemnification from the Common Security Holders under Section 8.02. If the Sellers’ Representative undertakes the defense of Indemnitor makes any Third Party Claim in accordance with this payment on any claim pursuant to Section 10.68.02, the Purchaser Indemnitor shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal insurance benefits or other expenses subsequently incurred by claims of the Purchaser Indemnitee in connection with the defense thereofrespect to such claim.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by Acquirer will defend any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by Acquirer in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and all amounts paid experts’ fees and court or arbitration costs) will be included in the Damages for which Acquirer may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder. Notwithstanding the foregoing, (i) the Representatives may participate in any proceeding with counsel of its choice and at its expense and (ii) if Acquirer fails to defend against, negotiate, settle or otherwise deal with such Third Party Claim as a result of provided in this Section 10.6(a), then the Indemnifying Party shall have the right to defend against, negotiate, settle or otherwise deal with the Third Party Claim in good faith and otherwise in such Proceeding or manner as the compromise or settlement thereofRepresentatives deems appropriate.
(cb) The Sellers’ Representative or Representatives will have the Purchaser Indemniteeright to receive copies of all pleadings, as notices and communications with respect to any Third-Party Claim to the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense extent that receipt of such third party claim in accordance with this Section 10.6, documents by the applicable Purchaser Indemnitee shall have Representatives does not affect any privilege relating to the right, but not the obligation, to Indemnified Person and may participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability settlement negotiations with respect to such Third-Party Claim. No Indemnified Person will enter into any settlement of a Third-Party Claim without the particular matter.
Representative’s prior written consent (ewhich consent will not be unreasonably withheld or delayed); provided, however, that if (and only if) the Representatives has consented in writing to any such settlement, then the Representatives will be deemed to have accepted the related Claim by any Indemnified Person for indemnification pursuant to Section 10.2 for the amount of such settlement, and the Company Stockholders will remain responsible to indemnify the Indemnified Persons for all Damages they may incur arising out of, resulting from or caused by the Third-Party Claim to the fullest extent provided in this Article 10. If the Sellers’ Representative undertakes Representatives have not consented in writing to any such settlement, then the defense Representatives shall not be precluded from disputing the amount of any Claim of an Indemnified Party resulting from a Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaim.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Sonicwall Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanySFG, Purchaser against any other Indemnitee or against any other Person) with respect to which any of the Sellers Selling Securityholders (an "INDEMNIFIER") may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X 11 (but subject to the limitations set out in Section 11.3) (a “"THIRD PARTY CLAIM"), such Indemnitee shall give the Agent reasonably prompt written notice of such Third Party Claim”). The Agent shall have the right to participate in or, if by giving notice to that effect to the Sellers’ Representative agrees that Indemnitee Party not later than 30 days after receipt of notice of such Third Party Claim and subject to the applicable Seller shall indemnify such Purchaser Indemnitee for rights of any insurer, to elect to assume the defence of any Third Party Claim at Indemnifier's own expense and against any Damages resulting from such underlying claim, then by the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable SellerAgent's own counsel, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to participate in the defence of any Third Party Claim assisted by counsel of its own choosing. The Indemnitee shall not settle or compromise any Third Party Claim without the prior written consent of the Agent. If the Agent so elects to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Agent any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time assume the defense of such claim or Proceeding. If the Agent does not elect to assume the defense of any such claim or Proceeding (or if, after the Agent assumes such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) the applicable indemnifying Seller Selling Securityholders shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Selling Securityholders that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(bii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Agent informed of all material developments and events relating to such claim or Proceeding; and
(iii) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; PROVIDED, HOWEVER, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.consent
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against Parent or the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 10, if Parent and the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If Parent or the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to Parent and the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser Parent and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession of Parent or control, reasonably requested by the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep Parent and the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) Parent and the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed; and
(f) Parent and the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If Parent and the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, Parent or the Purchaser elects to assume such defense), Parent or the Purchaser may proceed with the defense of such claim or Proceeding on its own. If Parent or the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by Parent or the Purchaser) shall be borne and paid exclusively by the Seller;
(ii) the Seller shall make available to Parent or the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, Parent and the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) Parent and the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Seller; provided, however, that the Seller shall not unreasonably withhold or the applicable Purchaser Indemnitee, as the case may be, delay such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In 10.5.1 Subject to the event terms and conditions of this Agreement, the Indemnitor Representative will have the obligation, at the Indemnitor Representative’s sole cost and expense, to assume and control the defense of all Indemnified Persons against a Third-Party Claim with reputable legal counsel of the assertion or commencement Indemnitor Representative’s choice that is reasonably satisfactory to the Indemnitee Representative. The Indemnitor Representative shall notify the Indemnitee Representative in writing within ten days after the Claim Notice for the Third-Party Claim has been given to the Indemnitor Representative that the Indemnitor Representative has undertaken such defense. In conducting the defense of such Third-Party Claim, (A) the Indemnitor Representative shall conduct the defense of the Third-Party Claim actively and diligently; and (B) the legal counsel chosen by the Indemnitor Representative shall not have any Person, other than a party hereto, conflict of interest in representing the interests of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other actionIndemnified Persons. Notwithstanding the foregoing, the SellersIndemnitor Representative may notify the Indemnitee Representative that the Indemnitors decline to defend a Claim (other than an Excluded Claim, which the Securityholders’ Representative shall not be obligated to defend, except where doing so would create a conflict of interest), in which event the Indemnitee Representative shall have the right to assume rights provided in Section 10.5.3 hereof.
10.5.2 So long as the Indemnitor Representative is conducting the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Third-Party Claim in accordance with Section 10.5.1 above: (A) each Indemnified Person may retain separate co-counsel and participate in the defense of the Third-Party Claim at its own cost and expense (except as provided below); (B) the Indemnitee Representative will have the right to receive copies of all pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such documents by the Indemnitee Representative does not adversely affect any privilege; (C) the Indemnitee Representative may participate in settlement negotiations with respect to the Third-Party Claim; and (D) the Indemnitor Representative will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim unless (1) the Indemnitee Representative consents thereto in writing (which consent will not unreasonably be withheld) or (2) the settlement, compromise or consent includes an unconditional release from all liability with respect to the Third-Party Claim in favor of each Indemnified Person. *** Certain confidential information in this document has been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
10.5.3 If the Indemnitor Representative fails or refuses to assume control of or otherwise participate in the defense or settlement of any Third-Party Claim, or does so undertake defense of such Third-Party Claim, but any of the conditions in Section 10.610.5.1 above is not satisfied or becomes unsatisfied, then the Purchaser Indemnitee Representative may, in addition to any and all other rights and remedies the Indemnitees may have arising out of such breach, control the defense of and consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim, provided, however, that the Indemnitor Representative (1) shall have the rightright to receive copies of all pleadings, but notices and communications with respect to the Third-Party Claim so long as the receipt of such documents by the Indemnitor Representative does not adversely affect any privilege, and (2) may participate in settlement negotiations with respect to the obligation, thereafter to defend, contest or otherwise protect against Third-Party Claim. Should the same Indemnitee Representative so assume control of the defense of any Third-Party Claim: (A) the Indemnitee Representative shall employ reputable legal counsel of its choice; (B) the Indemnitee Representative shall conduct the defense of the Third-Party Claim actively and make any compromise or settlement thereof diligently; (C) the costs and recover expenses incurred by the entire cost thereof from the applicable indemnifying Seller, Indemnitee Representative in connection with such defense (including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) will be included in the Losses and Expenses for which the Indemnified Persons may seek indemnity pursuant to a Claim made hereunder; and (D) the Indemnitors will remain responsible to indemnify all amounts paid as a result Indemnified Persons for all Losses and Expenses they may incur arising out of, resulting from or caused by the Third-Party Claim to the fullest extent provided in this Section 10. In the event that, having assumed defense of any Third-Party Claim, the Indemnitee Representative intends to settle any such Claim, the Indemnitee Representative shall give the Indemnitor Representative notice of such Proceeding or settlement, describing the compromise or settlement terms thereof.
, not less than ten (c10) The Sellers’ days prior to entering into such settlement. Unless the Indemnitor Representative or shall have given written notice to the Purchaser Indemnitee, as Indemnitee Representative within such ten (10) day period that the case may be, shall not compromise and settle any indemnifiable matters related Indemnitor Representative intends to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the assume defense of such third party claim Third-Party Claim, and in accordance with this Section 10.6fact assumes defense of such Claim at the sole cost and expense of the Indemnitor Representative, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Indemnitor Representative shall be entitled deemed to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterhave approved such settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion If any legal proceeding shall be instituted, or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether demand made, by any third party against the Company, Purchaser or any other Person) with Indemnified Party in respect to of which the Sellers may become obligated be liable hereunder (and such determination shall be made without regard to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”the limitations set forth in Section 8.6), if such Indemnified Party shall give prompt written notice thereof to the Sellers’ Representative agrees that Sellers and, except as otherwise provided in Section 8.4 below, the applicable Seller Sellers shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then have the Sellers’ Representative, at its election, shall be entitled right to defend, contest or otherwise protect against cause the Companies or its successors to defend, any litigation, action, suit, demand, or claim for which such Indemnified Party may seek indemnification with counsel satisfactory to the Sellers; provided, however, that the Sellers may not settle any such Proceeding at litigation, action, suit, demand, or claim without the expense prior written consent of the applicable SellerBuyer, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other actionwhich shall not be unreasonably withheld. Notwithstanding the foregoing, if in the Sellers’ Representative reasonable judgment of Buyer, (i) such litigation, action, suit, demand or claim, or the resolution thereof, would have a Material Adverse Effect on Buyer or the Companies in excess of $50,000 not covered as an Indemnifiable Cost or (ii) Sellers have a conflict of interest in defending such action on Buyer's or the Companies' behalf, at Buyer's election, Buyer may defend itself , and in either of such instances Sellers shall be liable for all expenses reasonably incurred in connection therewith (including, without limitation, settlement payments and reasonable attorney's fees). If neither (i) nor (ii) are applicable but Buyer desires to participate in the defense of an action Sellers are defending because in Buyer's reasonable judgment the outcome of such action could have an ongoing effect on Buyer, the Companies or its successors, the Buyer may participate but at its own expense. In the event the Sellers fails or refuses to defend any legal proceeding he is required to defend under this Article VIII within a reasonable length of time, the Indemnified Parties shall be entitled to assume the defense thereof, and the Sellers shall be liable to repay the Indemnified Parties for all expenses reasonably incurred in connection with said defense (including, without limitation, settlement payments and reasonable attorney's fees). If the Sellers does not have the right or refuses to assume the defense of any litigation, action, suit, demand, or claim in any legal proceeding he is required to defend under this Article VIII, the Indemnified Parties shall have the absolute right, at Sellers' expense, to control the defense of and to settle, in their sole discretion and without the consent of Sellers, such Third Party Claim litigation, action, suit, demand, or claim, but Sellers shall be entitled, at his own expense, to participate in such litigation, action, suit, demand, or claim, and if the Sellers elects to participate in such Third Party Claimlitigation the Indemnified Parties shall consult with the Sellers prior to settling such litigation. The party controlling any defense pursuant to this Section 8.2 shall deliver, if determined adversely or cause to Purchaser Indemniteebe delivered to the other party, would be likely copies of all correspondence, pleadings, motions, briefs appeals or other written statements relating to result or submitted in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds connection with the defense of any such Third Party Claim:
(i) subject to the litigation, action, suit, demand, or claim, and timely notices of any hearing or other provisions of this Article X, all reasonable expenses court proceeding relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimlitigation, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or controlaction, reasonably requested by the Sellers’ Representativesuit, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayeddemand, or conditionedclaim.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Vacation Group Inc)
Defense of Third Party Claims. Should any claim be made, or suit or proceeding (including, without limitation, a binding arbitration or an audit by any taxing authority) be instituted against an Indemnitee which, if prosecuted successfully, would be a matter for which Indemnitee is entitled to indemnification under this Agreement, the obligations and liabilities of the parties hereunder with respect to such Third Party Claim shall be subject to the following terms and conditions:
(a) In Indemnitee shall give the event Shareholders' Representative and Escrow Agent written notice of any Third Party Claim promptly after receipt by Indemnitee of notice thereof. The Shareholders' Representative may, at his option, (i) undertake control of the assertion defense thereof by counsel of its own choosing reasonably acceptable to Indemnitee or commencement (ii) decline to assume control of but participate in the defense thereof provided that such participation by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Shareholders' Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and Indemnitors. Indemnitee may participate in the Purchaser and defense through its own counsel at its own expense. The assumption of the Purchaser Indemnitee must cooperate in defense of any such defense or other action. Notwithstanding the foregoing, the Sellers’ Third Party Claim by Shareholders' Representative shall not be an acknowledgment by Shareholders' Representative that such Third Party Claim is subject to indemnification under the provisions of this Article IX and that such provisions are binding on the Shareholders. If, however, Shareholders' Representative fails or refuses to undertake the defense of such Third Party Claim within fifteen (15) days after written notice of such claim has been delivered to Shareholders' Representative by Indemnitee, Indemnitee shall have the right to 47 52 undertake the defense, compromise and, subject to Section 9.5 hereof, settlement of such Third Party Claim with counsel of its own choosing. In the circumstances described in the preceding sentence, Indemnitee shall, promptly upon its assumption of the defense of such Third Party Claim, make an Indemnification Claim which shall be deemed an Indemnification Claim that is not a Third Party Claim for the purposes of the procedures set forth herein. Failure of Indemnitee to furnish written notice to the Shareholders' Representative of a Third Party Claim shall not release the Shareholders' Representative or the Indemnitors from their obligations hereunder, except to the extent the Indemnitors are prejudiced by such failure.
(b) Indemnitee and the Shareholders' Representative shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available records relating to such claim and furnishing employees of Indemnitee as may be reasonably necessary for the preparation of the defense of any such Third Party Claim or for testimony as witness in any proceeding relating to such claim.
(c) Notwithstanding anything else in this Section 9.4 to the contrary, in the event of a Third Party Claim that is reasonably estimated to exceed fifty percent (50%) of the total Merger Consideration, valued as of the Closing Date, in the case of a claim related to Section 3.9 and $5 million, in the case of any other claim, Indemnitee shall have the option to undertake control of the defense by counsel of Indemnitee's choosing reasonably acceptable to the Shareholders' Representative. In this circumstance, Indemnitee shall, promptly upon its assumption of the defense of such Third Party Claim, make an Indemnification Claim which shall be deemed an Indemnification Claim, but shall not be subject to Indemnitor's right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim pursuant to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party ClaimSection 9.4.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In Subject to the event provisions hereof, the Indemnitor on behalf of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume elect to defend and control the defense of such Third Party Claim if such Third any Third-Party Claim, and, as provided by Section 7.5, the costs and expenses incurred by the Indemnitor in connection with such defense (including attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Indemnitor (it being understood that if determined adversely to Purchaser Indemniteethe Indemnitee is a Buyer Indemnified Person, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Shareholder Representative shall use the Sellers’ Representative proceeds Expense Fund (and not any portion of the Indemnity Escrow, except to the extent the Seller Expense Fund is increased from any portion of the Indemnity Escrow received by the Shareholder Representative) to fund the expenses it incurs in connection with the defense of any such Third Third-Party Claim:
(i) subject ). If the Sellers’ Expense Fund is depleted prior to the other provisions date on which no unresolved Claims against the Indemnity Escrow by any Buyer Indemnified Person remain, Shareholder Representative may elect to have Parent (on behalf the Buyer Indemnified Persons) defend, or assume control of this Article Xthe defense of, all any Third-Party Claim against a Buyer Indemnified Person, in which case Parent shall have available to it the Indemnity Escrow to fund its reasonable and documented out-of-pocket expenses relating to incurred in connection with the defense of such Third Third-Party Claim, and Parent and the Shareholder Representative shall from time to time execute and deliver joint written instructions to the Escrow Agent directing disbursements from the Indemnity Escrow for such purpose. The Indemnitee (unless itself controlling the Third-Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; in accordance with this Section 7.4(a)) may participate, through counsel of its own choice and
(ii) if the Sellers’ Representative proceeds with , except as provided herein, at its own expense, in the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Third-Party Claim.
(b) In The Indemnitee shall give prompt written notice of any Third-Party Claim to the event Indemnitor; provided that, so long as such notice is given prior to the Sellers’ Representative does Release Date, the failure to timely give such notice shall not limit or reduce the Indemnitee’s right to indemnity hereunder unless (and then only to the extent that) the Indemnitor is (or the Company Holders are, in the case of a Notice of Claim on behalf of a Buyer Indemnified Person) prejudiced thereby. The Indemnitor shall be entitled to assume the control and defense thereof utilizing legal counsel reasonably acceptable to the Indemnitee; provided that the Indemnitor shall not be entitled to assume control of such Third defense if (A) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (B) the claim seeks an injunction against the Indemnitee (or against any Company Subsidiary, if the Indemnitee is a Buyer Indemnified Person), to the extent that such defense relates to the claim for such injunction, or (C) the Shareholder Representative has elected to have Parent defend, or assume the control and defense of, a Third-Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof7.4(a).
(c) The Sellers’ Representative If the Indemnitor has the right to and does elect to control the defense of any Third-Party Claim, the Indemnitor shall: (i) conduct the defense of such Third-Party Claim with reasonable diligence and keep the Indemnitee reasonably informed of material developments in the Third-Party Claim at all stages thereof; (ii) promptly submit to the Indemnitee copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or filed in connection therewith; (iii) permit the Purchaser Indemnitee, as Indemnitee and its counsel to confer on the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent conduct of the Sellers’ Representative or defense thereof; and (iv) permit the applicable Purchaser Indemnitee, as the case may be, such consent not Indemnitee and its counsel an opportunity to review all legal papers to be unreasonably withheldsubmitted prior to their submission. If the Parent controls the defense of any Third-Party Claim against a Buyer Indemnified Person pursuant to Section 7.4(a), delayedParent shall: (i) conduct the defense of such Third-Party Claim with reasonable diligence and keep the Indemnitor reasonably informed of material developments in the Third-Party Claim at all stages thereof; (ii) promptly submit to the Indemnitor copies of all pleadings, responsive pleadings, motions and other similar legal documents and papers received or conditionedfiled in connection therewith; (iii) permit the Indemnitor and its counsel to confer on the conduct of the defense thereof; and (iv) permit the Indemnitor and its counsel an opportunity to review all legal papers to be submitted prior to their submission. Parent and the Shareholder Representative will make available to each other and each other’s counsel and accountants, without charge, all of its or their books and records relating to the Third-Party Claim, and each party will render to the other party such assistance as may be reasonably required in order to insure the proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the other party in connection therewith.
(d) If the Sellers’ Representative assumes Indemnitor controls the defense of such third party claim in accordance with and defends any Third-Party Claim under this Section 10.67.4, the Indemnitor shall have the right to effect a settlement of such Third-Party Claim on the Indemnitee’s behalf without the consent of the Indemnitee; provided that (A) in the case of a Third-Party Claim against a Buyer Indemnified Person, the amount to be paid as a result of such settlement does not exceed the balance of the Indemnity Escrow (after taking into account all Claims then pending against the Indemnity Escrow and assuming for purposes of this Section 7.4(d) that the full amount of each such Claim is payable from the Indemnity Escrow), (B) such settlement does not involve any injunctive relief binding upon the Indemnitee or any of its Affiliates, and (C) such settlement expressly and unconditionally releases the Indemnitee and the other applicable Purchaser Indemnified Persons (that is, each of the Buyer Indemnified Persons, if the Indemnitee is a Buyer Indemnified Person, and each of the Seller Indemnified Persons, if the Indemnitee is a Seller Indemnified Person) from all liabilities and obligations with respect to such Third-Party Claim, without prejudice. If the Indemnitee controls the defense of and defends any Third-Party Claim under this Section 7.4, the Indemnitee shall have the rightright to effect a settlement of such Third-Party Claim with the consent of the Indemnitor (which consent shall not be unreasonably withheld, but conditioned or delayed). No settlement by the Indemnitee of such Third-Party Claim shall limit or reduce the right of any Indemnified Person to indemnity hereunder for all Damages they may incur arising out of or resulting from the Third-Party Claim to the extent indemnified in this Article VII (provided that no such settlement that occurs without the Indemnitor’s consent (provided that such consent was not the obligationunreasonably withheld, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative conditioned or delayed) shall be entitled to control binding upon the defense unless Indemnitor (or any Company Holder, in the Purchaser case of a Claim on behalf of a Buyer Indemnified Person) or constitute evidence that any Indemnitee has relieved suffered Damages that are indemnifiable pursuant to Sections 7.1(a) or 7.2, or of the applicable indemnifying Seller from liability with respect amount of such Damages). As used in this Article VII, the term “settlement” refers to any consensual resolution of the particular matterclaim in question, including by consent, decree or by permitting any judgment or other resolution of a claim to occur without disputing the same, and the term “settle” has a corresponding meaning.
(e) If Notwithstanding anything to the Sellers’ Representative undertakes contrary contained herein, the Indemnitor under this Agreement shall not have any rights under this Section 7.4 to the extent any Claims for indemnification under Section 7.1 are made by or on behalf of a Buyer Indemnified Person against the Indemnity Policy in accordance with the provisions of this Agreement, including the right to defend or control the defense of any Third Party Claim in accordance with this Section 10.6such Claim, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense effect a settlement of any Third Party such Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled or consent to recover from the applicable indemnifying Seller, a settlement of any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsuch Claim.
Appears in 1 contract
Sources: Merger Agreement (Ascent Media CORP)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser or Purchaser Sub, against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 8, if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and have the right (unless (i) the Seller is also a Person against any Damages resulting from such underlying claim, then whom the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, claim is made and the Purchaser and determines in good faith that joint representation would be inappropriate or (ii) Seller fails to provide reasonable assurance to the Purchaser Indemnitee must cooperate in any of its financial capacity to defend such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right claim and provide indemnification with respect to such claim) to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Proceeding at the sole expense of the Seller with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser IndemniteePurchaser. If the Sellers’ Representative Seller elects to assume the defense of any such claim or Proceeding:
(a) the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel reasonably satisfactory to the Purchaser;
(b) the Purchaser shall make available to the Seller any documents and materials in the possession of the Purchaser or Purchaser Sub that may be necessary to the defense of such claim or Proceeding and the full assistance of the Newly Hired Employees;
(c) the Seller shall keep the Purchaser and Purchaser Sub informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser and Purchaser Sub shall have the right to participate in the defense of such claim or Proceeding at their own cost and expense;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser or Purchaser Sub, as applicable, not to be unreasonably withheld; and
(f) such assumption will conclusively establish for purposes of this Agreement that the claims made in that claim are within the scope of and subject to indemnification. If the Seller does not elect to assume the defense of any such claim or Proceeding, the Purchaser or Purchaser Sub may proceed with the defense of such claim or Proceeding on its own. If the Purchaser or Purchaser Sub so proceeds with the defense of any such Third Party Claimclaim or Proceeding on its own:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the applicable indemnifying Seller; Purchaser or the Purchaser Sub, and, subject to Section 8.2 above, shall be deemed Damages as they are incurred, for which the Indemnitee shall be entitled to indemnification payment;
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Seller shall make available to the Sellers’ Representative Purchaser and Purchaser Sub any documents and materials in their the possession or control, reasonably requested by control of the Sellers’ Representative, Seller that may be necessary to the defense of such Third Party Claim. If claim or Proceeding;
(iii) the Purchaser proceeds with and Purchaser Sub shall keep the defense Seller informed of any all material developments and events relating to such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession claim or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.Proceeding; and
(biv) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee and Purchaser Sub shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Seller; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Seller shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Esim LTD)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, Survivor, the Purchaser or any other Person) with respect to which the Sellers any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee, the Indemnitee pursuant receiving the claim shall give the Indemnitor reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such third party claim. The failure to this Article X (a “Third Party Claim”)give such prompt written notice shall not, however, relieve the Indemnitor of its indemnification obligations, except and only to the extent that the Indemnitor forfeits rights or defenses by reason of such failure. Such notice by the Indemnitee 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 Sellers’ Representative agrees Damages that has been or may be sustained by the applicable Seller Indemnitee. The Indemnitor shall indemnify such Purchaser Indemnitee for and against have the right to participate in, or by giving written notice to the Indemnitee, to assume the defense of any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding third party claim at the Indemnitor’s expense of and by the applicable SellerIndemnitor’s own counsel, and the Purchaser and the Purchaser Indemnitee must shall cooperate in any good faith in such defense or other action. Notwithstanding defense; provided, that if the foregoingIndemnitor is Seller, the Sellers’ Representative such Indemnitor shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies defend or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with direct the defense of any such Third Party Claim:
third party claim that (i) subject to the other provisions is asserted directly by or on behalf of this Article Xa Person that is a Company Customer, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
Company Reseller, or Company Vendor, or (ii) if seeks an injunction or other equitable relief against the Sellers’ Representative proceeds with Indemnitee, or (iii) alleges the Company Software infringes the Intellection Property Rights of a third party. In the event that the Indemnitor assumes the defense of any third party claim, subject to Section 6.5(b), it shall have the right to take such Third Party Claimaction as it deems necessary to avoid, Purchaser dispute, defend, appeal or make counterclaims pertaining to any such third party claim in the name and on behalf of the Purchaser Indemnitee. The Indemnitee shall make available have the right to the Sellers’ Representative any documents and materials participate in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any third party claim with counsel selected by it subject to the Indemnitor’s right to control the defense thereof. The fees and disbursements of such Third Party Claimcounsel shall be at the expense of the Indemnitee, provided, that if in the reasonable opinion of counsel to the Indemnitee, (A) there are legal defenses available to an Indemnitee that are different from or additional to those available to the Indemnitor; or (B) there exists a conflict of interest between the Indemnitor and the Indemnitee that cannot be waived, the applicable indemnifying Seller Indemnitor shall make available to Purchaser any documents be liable for the reasonable fees and materials in their possession or control, reasonably requested by Purchaser, that may be necessary expenses of counsel to the defense of such Third Party Claim.
(b) In Indemnitee in each jurisdiction for which the event Indemnitee determines counsel is required. If the Sellers’ Representative does Indemnitor elects not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover defend such third party claim, fails to promptly notify the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid Indemnitee in writing of its election to defend as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayedprovided in this Agreement, or conditioned.
(d) If the Sellers’ Representative assumes fails to diligently prosecute the defense of such third party claim in accordance with this Section 10.6claim, the applicable Purchaser Indemnitee may, subject to Section 6.5(b), pay, compromise, defend such third party claim and seek indemnification for any and all Damages based upon, arising from or relating to such third party claim. All Parties to this Agreement shall have the right, but not the obligation, to participate at its own expense cooperate with each other in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee all reasonable respects in connection with the defense thereof.
of any third party claim, including making available (fsubject to the provisions of Section 7.4) If records relating to such third party claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Sellers’ Representative undertakes defending Party, management employees of the non-defending Party as may be reasonably necessary for the preparation of the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.such third party claim;
Appears in 1 contract
Sources: Merger Agreement (inContact, Inc.)
Defense of Third Party Claims. (a) In Acquiror shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by Acquiror in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Damages for which Acquiror may seek indemnification pursuant to a Claim made by any Acquiror Indemnified Person hereunder.
(b) The Representative shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by the Representative does not affect any privilege relating to the Acquiror Indemnified Person and may participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeRepresentative, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have objected within 15 days after a written request for such consent by Acquiror. In the rightevent that the Representative has consented in writing to any such settlement, but not neither the obligation, Representative nor any Effective Time Holder shall have any power or authority to participate at its own expense in defense thereof object under any provision of this ARTICLE 12 to the amount of any claim by counsel or on behalf of its own choosing, but any Acquiror Indemnified Person against the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability Escrow Fund or Effective Time Holders for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Covad Communications Group Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against Holdings, the Company, Purchaser against any other Indemnitee or against any other Person) with respect to which any of the Sellers Stockholders may become obligated to indemnify, hold harmless, indemnifypay, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 9, (a “Third Party Claim”i) Parent, as soon as practicable after it receives written notice of any such claim or Legal Proceeding, shall notify the Stockholders' Agent of such claim or Legal Proceeding (it being understood that the failure to notify the Stockholders' Agent shall not in any way limit the rights of the Indemnitees under this Agreement unless such failure materially prejudices the defenses available to the Stockholders' Agent), if and (ii) Parent shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Stockholders' Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Legal Proceeding at the sole expense of such Purchaser Indemniteethe Stockholders. If Parent so elects to designate the Sellers’ Representative proceeds with Stockholders' Agent to assume the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject the Stockholders' Agent shall proceed to the other provisions of this Article X, all reasonable expenses relating defend such claim or Legal Proceeding in a diligent manner with counsel satisfactory to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andParent;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Parent shall make available to the Sellers’ Representative Stockholders' Agent any non-privileged documents and non-privileged materials in their the possession or control, reasonably requested by the Sellers’ Representative, of Parent that may be necessary to the defense of such Third Party Claim. If claim or Legal Proceeding;
(c) the Purchaser proceeds with Stockholders' Agent shall keep Parent informed of all material developments and events relating to such claim or Legal Proceeding;
(d) Parent shall have the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available right to Purchaser any documents and materials participate in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.claim or Legal Proceeding;
(be) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, Stockholders' Agent shall not settle, adjust or compromise and settle any indemnifiable matters related to Third Party Claims such claim or Legal Proceeding without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.Parent; and
(df) If Parent may at any time (notwithstanding the Sellers’ Representative assumes prior designation of the Stockholders' Agent to assume the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(eor Legal Proceeding) If the Sellers’ Representative undertakes assume the defense of such claim or Legal Proceeding if (i) the Stockholders' Agent shall fail to comply with any Third Party Claim in accordance with of its obligations under this Section 10.69.5 (including its obligation to defend any claim or Legal Proceeding in a diligent manner), or (ii) Parent, after consultation with its counsel, determines that the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon control of the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee Stockholders' Agent would give rise to a conflict of interest or would otherwise be inappropriate in connection with the defense thereofsuch claim or Legal Proceeding.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Packeteer Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the an Acquired Company, Purchaser or any other Person) with respect to which the Sellers any Seller may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 9 (other than a “Third Party Claim”claim or Legal Proceeding relating to any matter described in Section 9.2(b)(iv)), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled obligated to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim claim or Legal Proceeding on its own; provided, however, that if such Third Party Claimclaim or Legal Proceeding is asserted or commenced against any Acquired Company, if determined adversely then (x) the Company shall defend such claim or Legal Proceeding with counsel selected by Purchaser, in which case, to the extent appropriate, all references to Purchaser Indemniteein clauses “(i)” and “(ii)” of this Section 9.5(a) shall be deemed to refer to the Company, would be likely (y) Purchaser shall have the sole and absolute right and authority to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with determine and conduct the defense of such claim or Legal Proceeding, including with respect to any decision to settle, adjust or compromise such Third Party Claim:
claim or Legal Proceeding and (iz) subject to the other provisions all fees (including attorneys’ fees), charges, costs (including costs of this Article X, all reasonable investigation) and expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds Company. In connection with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession claim or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Legal Proceeding: (i) each Seller shall make available to Purchaser any documents and materials in their such Seller’s possession or control, reasonably requested by Purchaser, control or in the control of any of such Seller’s Representatives that may be necessary to the defense of such Third Party Claim.claim or Legal Proceeding; 30
(bii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled on behalf of the Sellers (or, in the case of a §9.2(b) Claim, the applicable Seller shall be entitled), at the Sellers’ expense (A) to control consult with Purchaser with respect to, but not to determine or conduct, the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability of such claim and (B) to receive copies of complaints, pleadings, notices and material written communications with respect to the particular matter.
(e) If such claim; provided, however, that Purchaser shall not be required to disclose any information to the Sellers’ Representative undertakes (or, in the defense case of any Third Party Claim in accordance with this Section 10.6a §9.2(b) Claim, the applicable Seller) if such disclosure would reasonably be expected to jeopardize the protection of the attorney-client privilege, work product or similar protection or other applicable legal privilege; and (iii) Purchaser Indemnitee shall nothave the right to settle, so long as adjust or compromise such claim or Legal Proceeding; provided, however, that if Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Sellers’ Representative does not abandon (or, in the defense thereofcase of a §9.2(b) Claim, be entitled to recover from the applicable indemnifying Seller), any legal such settlement, adjustment or other expenses subsequently compromise shall not be determinative of the amount of Damages incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If such claim or Legal Proceeding. Purchaser shall give the Sellers’ Representative undertakes (or, in the defense case of a §9.2(b) Claim, the applicable Seller) prompt notice of the commencement of any Third Party Claim in accordance Legal Proceeding against Purchaser with this Section 10.6respect to which Purchaser intends to demand indemnification from the Sellers; provided, however, that any failure on the part of Purchaser Indemnitee shall not, so long as to promptly notify the Sellers’ Representative zealously pursues (or, in the case of a §9.2(b) Claim, the applicable Seller) of such Legal Proceeding shall not limit any of the obligations of any Seller under this Section 9.5 (except to the extent such failure materially prejudices the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofof such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X IX (a “Third Party Claim”), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative Representative. If Purchaser so proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article XIX, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andSellers;
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Purchaser any documents and materials in their possession or control, reasonably requested by his and in the Sellers’ Representative, possession or control that may be necessary to the defense of such Third Party Claim. ; and
(iii) Purchaser may not settle, adjust or compromise such Third Party Claim without the consent of the Sellers’ Representative (it being understood that if Purchaser requests that the Sellers’ Representative consent to a settlement, adjustment or compromise, the Sellers’ Representative shall not unreasonably withhold or delay such consent).
(b) If the Purchaser proceeds does not elect to proceed with the defense of any such Third Party Claim, the applicable indemnifying Seller Sellers’ Representative shall make available proceed with the defense of such Third Party Claim with counsel reasonably satisfactory to Purchaser any documents and materials in their possession or controlPurchaser; provided, reasonably requested by Purchaserhowever, that the Sellers’ Representative may not settle, adjust or compromise any such Third Party Claim without the prior written consent of Purchaser (which consent may not be necessary unreasonably withheld or delayed). Purchaser shall give the Sellers’ Representative prompt notice of the commencement of any such Third Party Claim against any Indemnitee; provided, however, that any failure on the part of Purchaser to so notify the Sellers’ Representative shall not limit any of the obligations of the Sellers under this Article IX (except to the extent such failure materially prejudices the defense of such Third Party Claim).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the SellersThe Shareholders’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, assume and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume control the defense of any Third-Party Claim through counsel of their choice (such counsel to be reasonably acceptable to Keynote) if they give notice of their intention to do so to Keynote and:
(i) so long as (1) the Third Party Claim if involves only money damages and does not seek an injunction or other equitable relief, (2) the remaining Escrowed Funds are sufficient to defend and fulfill the highest reasonably likely Damages with respect to such Third Party Claim, if determined adversely to Purchaser Indemnitee(3) settlement of, would be or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Keynote Indemnified Person, likely to result in injunctionsestablish a precedential custom or practice materially adverse to the continuing business interests of the Keynote Indemnified Person, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If and (iv) the SellersShareholders’ Representative proceeds with conducts the defense of any such the Third Party Claim:Claim actively and diligently;
(ii) so long as the Shareholders’ Representative is conducting the defense of the Third-Party Claim in accordance with paragraph (i) subject above, (1) the Keynote Indemnified Person shall be entitled to the other provisions of this Article X, all reasonable expenses relating to participate in the defense of such Third Party Claim claim and to employ counsel at its own expense to assist in the handling of such claim, and (2) the Shareholders’ Representative shall not consent to the entry of any judgment or enter into any settlement without the prior written approval of the Keynote Indemnified Person, which approval shall not be borne and paid exclusively by the applicable indemnifying Sellerunreasonably withheld; and
(iiiii) if Keynote shall cooperate with the SellersShareholders’ Representative proceeds with the in such defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the SellersShareholders’ Representative any documents Representative, at Keynote’s expense, all witnesses, pertinent records, materials and materials information in their the Keynote’s possession or control, under Keynote’s control relating thereto as is reasonably requested by the SellersShareholders’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event that the SellersShareholders’ Representative does not assume and control the defense of such Third a Third-Party Claim as set forth in Section 8.6(a) above or conduct the defense in accordance with this such Section 10.68.6(a), Keynote shall defend any Third-Party Claim, and the Purchaser Indemnitee shall have the right, costs and expenses incurred by Keynote in connection with such defense (including but not the obligation, thereafter limited to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ reasonable fees and court or arbitration costs) shall be included in the Special Damages, Shareholder Damages or Damages for which Keynote may seek indemnity pursuant to a Claim made by any Keynote Indemnified Person hereunder. The Shareholders’ Representative shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such Proceeding or documents by the compromise or settlement thereof.
(c) The SellersShareholders’ Representative or does not affect any privilege relating to the Purchaser IndemniteeKeynote Indemnified Person, as and may participate in settlement negotiations with respect to the case may be, Third-Party Claim. No Keynote Indemnified Person shall not compromise and settle enter into any indemnifiable matters related to Third settlement of such a Third-Party Claims Claim without the prior written consent of the SellersShareholders’ Representative or the applicable Purchaser Indemnitee, as the case may be, such (which consent shall not to be unreasonably withheld, conditioned or delayed), and the Vividence Shareholders will remain responsible to indemnify the Keynote Indemnified Persons for all Special Damages, Shareholder Damages or conditioned.
(d) If Damages they may incur arising out of, resulting from or caused by the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Third-Party Claim to the particular matterfullest extent provided in Article 8 hereof.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Keynote Systems Inc)
Defense of Third Party Claims. (a) Upon receipt of a Claim Notice from Purchaser with respect to any claim for indemnification which is based upon a Claim, the Sellers may, by written notice to Purchaser within 30 days, elect to compromise or settle the Claim or, if the Claim is made as a consequence of any action, suit, proceeding, claim, etc., by a third person, the Sellers may elect to assume the defense of the Claim at their own expense, with counsel of its choosing reasonably satisfactory to Purchaser. In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against Sellers assumes the Companydefense, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmlessshall cooperate, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable SellerSellers, in the defense of the Claim and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trial and appeals as may be reasonably required in connection therewith. In any event, Purchaser shall have the Purchaser and the Purchaser Indemnitee must cooperate right to employ its own counsel in any such action, but the fees and expenses of such counsel shall be at the expense of Purchaser unless either (i) the Sellers shall not have assumed the defense of the Claim as provided above, in which event such fees and expenses shall be borne by the Sellers, or other action(ii) the Sellers are defending, in good faith, any such Claim, but representation of Purchaser by counsel retained by such Sellers would be inappropriate by reason of defenses being available to Purchaser which are not available to such Sellers, in which case Purchaser may be represented by its own counsel at the expense of Sellers. If the Sellers fail to notify Purchaser of its election to compromise or defend the Claim as herein provided or contests its obligation to indemnity under this Agreement, Purchaser may pay, compromise or defend such Claim. Notwithstanding the foregoing, neither the Sellers’ Representative shall not have the right to assume the defense of such Third Party Sellers nor Purchaser may settle or compromise any Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative other, provided however, that consent to settlement or the applicable Purchaser Indemnitee, as the case may be, such consent compromise shall not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against Parent or the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 0, if Parent and the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If Parent or the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to Parent and the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser Parent and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession of Parent or control, reasonably requested by the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claim. If claim or Proceeding;
(c) the Seller shall keep Parent and the Purchaser proceeds with informed of all material developments and events relating to such claim or Proceeding;
(d) Parent and the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, which shall not be unreasonably withheld or delayed; and
(f) Parent and the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such Third Party Claim, claim or Proceeding) assume the applicable indemnifying defense of such claim or Proceeding.
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by Parent or the Purchaser) shall be borne and paid exclusively by the Seller;
(ii) the Seller shall make available to Parent or the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, Parent and the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) Parent and the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Seller; provided, however, that the Seller shall not unreasonably withhold or the applicable Purchaser Indemnitee, as the case may be, delay such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Medical Technologies Inc/De)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Indemnity or against any other Person) with respect to which the Sellers Vendors may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee Indemnity pursuant to this Article X (a “Third Party Claim”)Section 8, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Vendors to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Vendors. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Vendors to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Vendors shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Vendors any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Vendors shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Vendors shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser provided, however, that the Purchaser shall not unreasonable withhold such consent; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Vendors to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Vendors to assume the defense of any such claim or Proceeding (or if, after initially designating the Vendors to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Vendors;
(ii) the Vendors shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Vendors that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Vendors informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Vendors; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Vendors shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than If a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled initiates a Proceeding claiming a Patent Right owned by or licensed to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claimis infringed by the Development, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies Manufacture or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense Commercialization of any such Third Party Claim:
(i) Licensed Product, then, subject to Section 10.4.1 (Control of the other provisions of this Article XDefense), all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall Novartis will have the first right, but not the obligation, thereafter to defend, contest or otherwise protect defend against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or at its sole cost and expense. If Novartis elects to defend against such Proceeding, then Novartis will have the compromise or settlement thereof.
sole right to direct the defense and to elect whether to settle such claim (c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without but only with the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee▇▇▇▇▇, as the case may be, such consent not to be unreasonably withheld, delayedconditioned, or conditioned.
(d) If delayed). ▇▇▇▇▇ will reasonably assist Novartis in defending such Proceeding. Novartis will keep Ionis apprised of the Sellers’ Representative assumes the defense progress of such third party claim Proceeding. If Novartis elects not to defend against a Proceeding, then Novartis will so notify Ionis in accordance with this Section 10.6writing within [***] after Novartis first receives written notice of the initiation of such Proceeding, the applicable Purchaser Indemnitee shall and ▇▇▇▇▇ will have the right, but not the obligation, to participate defend against such a Proceeding at its sole cost and expense and thereafter Ionis will have the sole right to direct the defense thereof, including the right to settle such claim (but only with the prior written consent of Novartis, which consent will not be unreasonably withheld, delayed or conditioned). In any event, the Parties will reasonably assist each other and cooperate in any such Proceedings at the other Party’s request and expense. Each Party may at its own expense in defense thereof by counsel of and with its own choosingcounsel join any defense initiated or directed by the other Party under this Section 8.5 (Defense of Claims Brought by Third Parties; Oppositions). Each Party will provide the other Party with prompt written notice of the commencement of any such Proceeding under this Section 8.5 (Defense of Claims Brought by Third Parties; Oppositions), but and such Party will promptly furnish the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability other Party with respect a copy of each communication relating to the particular matteralleged infringement that is received by such Party.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Collaboration and License Agreement (Ionis Pharmaceuticals Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Selling Shareholders or against any other Person) with respect to which any of the Sellers Indemnitors may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 4, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Selling Shareholders. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Agent to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Agent any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own: (i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Selling Shareholders; (ii) the Selling Shareholders shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Selling Shareholders that may be necessary to the defense of such Third Party Claim.
claim or Proceeding; (biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Agent informed of all material developments and events relating to such claim or Proceeding; and (iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Plan of Reorganization and Stock Purchase Agreement (Nichols Robert D)
Defense of Third Party Claims. (a) In The Seller may, at its cost and expense, upon notice to the event Buyer within thirty (30) days after the Seller receives the Notice of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) Claim with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if assume the Sellers’ Representative agrees that defense of the applicable Third-Party Claim with counsel of its choice. If the Seller shall indemnify assumes the defense of such Purchaser Indemnitee for and against any Damages resulting from such underlying claimThird-Party Claim, then the Sellers’ Representative, at its election, Buyer shall be entitled to defend, contest or otherwise protect against participate in (but not control) the defense of any such Proceeding Third-Party Claim with its own counsel and at its own expense. If the expense Buyer elects to participate in the defense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoingThird-Party Claim, the Sellers’ Representative shall Buyer will cooperate with the Seller in the conduct of such defense.
(b) If the Seller does not have the exercise its right to assume the defense of such Third a Third-Party Claim if such Third Party Claimpursuant to Section 9.4(a) hereof, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to Buyer may conduct the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Third-Party Claim in accordance with this Section 10.6any manner it reasonably may deem appropriate and at the expense of the Seller, for which the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof Buyer may seek reimbursement from the applicable indemnifying SellerGeneral Escrow Fund, including reasonable attorneys’ fees, disbursements and all amounts paid as a result the Seller shall cooperate with the Buyer in the conduct of such Proceeding or the compromise or settlement thereofdefense.
(c) The Sellers’ Representative or Neither the Purchaser Indemnitee, as Seller nor the case may be, Buyer shall not compromise and settle enter into any indemnifiable matters related to Third settlement of a Third-Party Claims Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such other party (which consent from either party shall not to be unreasonably withheld); provided, delayedhowever, that if the Seller shall have entered into or conditioned.
(d) If otherwise consented in writing to any such settlement, then the Sellers’ Representative assumes Seller shall have been deemed to accept the defense related Claim by the Buyer for indemnification under Section 9.2 for the amount of such third party claim in accordance with this Section 10.6settlement; and the Seller shall remain responsible to indemnify the Buyer Parties for all Losses they may incur arising out of, resulting from or caused by the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Third-Party Claim to the particular matterfullest extent provided in this Article IX.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the CompanySurviving Corporation, Purchaser against Parent or against any other Person) with respect to which the Sellers any Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Purchaser Indemnitee reimbursed pursuant to this Article X Section 9 (a “Third Party Claim”), if (a) Parent shall notify the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the SellersShareholders’ Representative, at its electionpromptly after Parent receives notice of such Third Party Claim, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, nature of such Third Party Claim and the Purchaser and amount of damages claimed by the Purchaser Indemnitee must cooperate in Person who asserted or commenced such Third Party Claim (it being understood that any such defense or other action. Notwithstanding failure by Parent to so promptly notify the foregoing, the SellersShareholders’ Representative shall not have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 9, except to the right to assume extent that the defense of such Third Party Claim if is materially prejudiced by such failure), and (b) Parent shall have the right, at its election, to proceed with the defense of such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser IndemniteeClaim on its own. If the Sellers’ Representative Parent so proceeds with the defense of any such Third Party Claim:
: (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne paid from the Indemnity Escrow Fund (with Parent and paid exclusively by the applicable indemnifying SellerShareholders’ Representative being required to jointly execute and deliver to the Escrow Agent such written instructions as Parent may determine in good faith to be appropriate in order to ensure the timely payment of such expenses from the Indemnity Escrow Fund); and
(ii) if the SellersShareholders’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall use commercially reasonable efforts to make available to the Sellers’ Representative Parent any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim; and (iii) Parent shall not settle, adjust or compromise such Third Party Claim without the prior written consent of the Shareholders’ Representative (which consent shall not be unreasonably withheld or delayed). If the Purchaser proceeds Parent does not elect to proceed with the defense of any such Third Party Claim, the applicable indemnifying Seller Shareholders’ Representative shall make available to Purchaser any documents and materials in their possession or control(at the sole expense of the Non-Dissenting Shareholders, reasonably requested by Purchaser, that may be necessary with all expenses relating to the defense of such Third Party Claim.
(bClaim to be paid from the Expense Escrow Fund) In the event the Sellers’ Representative does not assume proceed with the defense of such Third Party Claim in accordance with this Section 10.6counsel satisfactory to Parent; provided, however, that the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The SellersShareholders’ Representative may not settle, adjust or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to such Third Party Claims Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such Parent (which consent shall not to be unreasonably withheld, withheld or delayed, or conditioned).
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Verity Inc \De\)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchaser, Purchaser the Parent, against any other Indemnitee or against any other Person) with respect to which the Sellers Shareholder or the Seller may become obligated to indemnify, hold harmless, indemnifycompensate, compensate pay or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 8, if the Sellers’ Representative agrees that Purchaser and the applicable Seller Parent shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then have the Sellers’ Representativeright, at its election, shall be entitled to defend, contest designate either the Seller or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Shareholder to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Shareholder or the Seller. If the Sellers’ Representative proceeds with Purchaser or the defense of any such Third Party ClaimParent so elects:
(iA) subject the designated party shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Parent;
(B) the designated party shall make available to the Sellers’ Representative designated party any non-privileged documents and materials in their the possession of the Purchaser or control, reasonably requested by the Sellers’ Representative, Parent that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(C) the designated party shall keep the Purchaser and the Parent informed of all material developments and events relating to such claim or Proceeding;
(D) the Purchaser and the Parent shall have the right to participate in the defense of such claim or Proceeding;
(E) the designated party shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Parent (and of the Purchaser, to the extent the Purchaser is a party to the Proceeding); and
(F) the Purchaser or the Parent may at any time (notwithstanding the prior designation of the Seller or the Shareholder, to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser or the Parent does not elect to designate the Seller or the Shareholder to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller or the Shareholder to assume such defense, the Purchaser or the Parent elects to assume such defense), the Purchaser or the Parent may proceed with the defense of such claim or Proceeding on its own. If the Purchaser or the Parent so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(A) all expenses relating to the applicable indemnifying defense of such claim or Proceeding (whether or not incurred by the Purchaser or the Parent) shall be borne and paid exclusively by the Seller;
(B) the Shareholder and the Seller shall make available to the Purchaser or the Parent any documents and materials in their the possession or control, reasonably requested by Purchaser, control of either the Shareholder or the Seller that may be necessary or useful to the defense of such Third Party Claim.claim or Proceeding;
(bC) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee or the Parent shall keep the Shareholder and Seller reasonably informed of material developments and events relating to such claim or Proceeding; and
(D) the Purchaser or the Parent shall have the rightright to settle, but adjust or compromise such claim or Proceeding with the consent of the Shareholder or the Seller; PROVIDED, HOWEVER, that (i) such consent shall not be unreasonably withheld and (ii) if the obligation, thereafter to defend, contest Purchaser or otherwise protect against the same and make any compromise Parent determines in good faith that it is likely that a Proceeding may adversely affect the Purchaser or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid Parent other than as a result of such Proceeding monetary damage for which it would be entitled to indemnification under this Agreement, the Purchaser or the Parent may assume the exclusive right to defend, settle, adjust or compromise such claim or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims Proceeding without the prior written consent of the Sellers’ Representative Shareholder or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditionedSeller.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with With respect to each third party claim for which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to Brassie seeks indemnification under this Article X V (a “"Third Party Claim”"), Brassie shall give prompt notice to the Seller of the Third Party Claim, provided that failure to give such notice promptly shall not relieve or limit the obligations of the Seller unless the Seller has been materially prejudiced thereby (and such failure to notify the Seller will not relieve him from any other liability he may have to Brassie). If the remedy sought in the Third Party Claim is solely money damages, or if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claimBrassie otherwise permits, then the Sellers’ RepresentativeSeller at his sole cost and expense, at its electionmay, shall be entitled upon notice to defend, contest or otherwise protect against any such Proceeding at Brassie within fifteen (15) days after the expense Seller receives notice of the applicable SellerThird Party Claim, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds Seller assumes the defense of a Third Party Claim, then the Seller shall select counsel reasonably satisfactory to Brassie to conduct the defense. The Seller shall not consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim, unless (i) the settlement or judgment is solely for money damages and the Seller admits in writing his liability to hold Brassie harmless from and against any losses, damages, expenses and liabilities arising out of such settlement or judgment or (ii) Brassie consents thereto, which consent shall not be unreasonably withheld. The Seller shall provide Brassie with fifteen (15) days prior notice before he consents to a settlement of, or the entry of a judgment arising from, any Third Party Claim. Brassie shall be entitled to participate, at its own expense, in the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In which is assumed by the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance Seller with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same his own counsel and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related at his own expense. With respect to Third Party Claims without in which the prior written consent remedy sought is not solely money damages and Brassie does not permit the Seller to assume the defense, the Seller shall, upon notice to Brassie within fifteen (15) days after the Seller receives notice of the Sellers’ Representative or the applicable Purchaser IndemniteeThird Party Claim, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control participate in the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) his own counsel at his own expense. If the Sellers’ Representative undertakes Seller does not assume or participate in the defense of any Third Party Claim in accordance with the terms of this Section 10.6Section, then the Purchaser Indemnitee Seller shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred bound by the Purchaser Indemnitee results obtained by Brassie with respect to the Third Party Claim. The parties shall cooperate in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaim.
Appears in 1 contract
Defense of Third Party Claims. (a) In Each Party shall notify the event of the assertion or commencement by any Person, other than a party hereto, Party promptly of any claim of, or Proceeding (whether against action for, infringement of any patents or misappropriation of trade secret rights of any Third Party * * * Certain information on this page has been omitted and filed separately with the Company, Purchaser or any other Person) Securities and Exchange Commission. Confidential treatment has been requested with respect to which the Sellers may become obligated to hold harmlessomitted portions. that is threatened, indemnifymade or brought against either Party by reason of the development, compensate manufacture, use, sale, offer for sale, importation, exportation or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)marketing of the Product by either Party. As between NYCOMED and DURECT, if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, DURECT shall be entitled solely responsible for defense of all such claims, including all related Costs, with respect to defendalleged infringement or misappropriation by the manufacture, contest or otherwise protect against any such Proceeding at the expense use, sale, offer for sale, exportation and importation of the applicable SellerProduct outside the Territory, and so long as the Purchaser and the Purchaser Indemnitee must cooperate in any such defense alleged infringing or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense misappropriating activity is carried out by or on behalf of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party ClaimDURECT.
(b) In the event of the Sellers’ Representative does institution of any claim, action or suit by a Third Party against either Party for patent infringement or misappropriation of Third Party Know-How involving the development, manufacture, use, sale, offer for sale, importation, exportation, marketing or Commercialization of the Product in the Territory, excluding any such activity being carried out by or on behalf of DURECT (“Relevant Third Party Claim”), [* * *] Subject to the terms of this Section 9.6, the Party defending the Relevant Third Party Claim shall control such defense and shall be responsible for its own Costs associated with such defense, including all fees and costs of attorneys, expert witnesses and court costs, provided that the defending Party shall: (i) use legal counsel reasonably acceptable to the other Party, (ii) regularly consult with the other Party or its counsel to keep them fully informed on the progress and status of the Relevant Third Party Claim, and (iii) provide copies of all material documents and consider in good faith all comments and suggestions made by the other Party or its counsel. The other Party shall, at its own Cost, assist the defending Party (including providing access to its technical staff for consultation as necessary) and cooperate in the Relevant Third Party Claim at the defending Party’s request including being joined in such action if necessary. The defending Party may not assume settle, compromise or dispose of any Relevant Third Party Claim without the defense other Party’s prior written consent, which consent will not be unreasonably withheld or delayed if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would adversely affect the Patents (e.g., restrict the claims in or admit any invalidity of any of the Patents) or otherwise significantly adversely affect the rights of the other Party to this Agreement. * * * Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(c) In the event that: (A) there is a final determination by a court of competent jurisdiction that such Third Party patent is infringed or Third Party Know-How has been misappropriated by the development, manufacture, use, sale, offer for sale, importation, exportation, marketing or Commercialization of the Product in the Territory in accordance with this Agreement, or (B) a settlement is entered into that disposes of the Relevant Third Party Claim in accordance with this the last sentence of Section 10.69.6(b) above, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.then: [* * *]
Appears in 1 contract
Defense of Third Party Claims. (ai) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right opportunity at any time (provided Seller shall have acknowledged in writing that Seller is obligated under the terms of this Agreement to indemnify Buyer) to assume complete control of the defense of such the Third Party Claim if at Seller's sole expense. In such Third Party Claimcase, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect Seller shall control all aspects of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
. The Seller shall, however, keep Buyer fully informed of the status of such Third-Party Claim (iincluding the prompt delivery to Buyer of copies of all pleadings, responsive pleadings, motions, and other similar legal documents and papers received in connection with the Third Party Claim) subject and shall, to the extent practicable, confer with Buyer from time to time on the positions to be taken by the Seller in defending such Third-Party Claim, but Buyer shall have no other provisions rights of this Article X, all reasonable expenses relating to participation therein. Buyer may retain separate counsel at its sole cost and expense and participate in the defense of such the Third Party Claim shall be borne and paid exclusively by unless the applicable indemnifying Seller; andSeller acknowledges writing that the Seller is obligated under the terms of this Agreement to indemnify the Buyer.
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of the Third Party Claim, as aforesaid, Buyer shall be responsible for such defense, subject to (iii) below.
(iii) If Buyer becomes responsible for the defense of the Third Party Claim, as provided in (ii) above, the following shall apply:
(A) Under no circumstances may Buyer compromise or settle a Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeSeller, as which consent, solely in the case may beof the proposed payment of money damages in compromise or settlement, such consent shall not to be unreasonably withheld, delayedconditioned, or conditioneddelayed.
(dB) If Buyer shall keep Seller fully informed of the Sellers’ Representative assumes Third Party Claim at all stages of the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(eC) If Buyer shall promptly submit to the Sellers’ Representative undertakes the defense Seller copies of any Third Party Claim in accordance with this Section 10.6all pleadings, the Purchaser Indemnitee shall notresponsive pleadings, so long as the Sellers’ Representative does not abandon the defense thereofmotions, be entitled to recover from the applicable indemnifying Seller, any and other similar legal or other expenses subsequently incurred by the Purchaser Indemnitee documents and papers received in connection with the defense thereof.Third Party Claim,
(fD) If Buyer shall permit the Sellers’ Representative undertakes Seller and its counsel, to the extent practicable, to confer on the conduct of the defense of any the Third Party Claim in accordance with this Section 10.6Claim,
(E) Buyer shall, to the Purchaser Indemnitee shall notextent practicable, so long as permit Buyer and its counsel an opportunity to review all legal papers to be submitted before the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofsubmission.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of Claims resulting from the assertion or commencement of liability by any Personthird parties (each, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, ) shall be entitled subject to defend, contest or otherwise protect against the following terms and conditions:
(a) The Indemnifying Person may defend any such Proceeding at the expense Third Party Claim with counsel of the applicable Sellerits own choosing, and the Purchaser shall act reasonably and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of accordance with its good faith business judgment in handling such Third Party Claim if Claim. If the Indemnifying Person elects not to defend such Third Party Claim, if determined adversely the Indemnifying Person shall promptly provide notice to Purchaser Indemnitee, would the Indemnified Person in which case the Indemnified Person shall defend such claim with counsel reasonably acceptable to the Indemnifying Person and the Indemnified Person shall have the right to be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteerepresented by its own counsel at its own expense. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject Indemnifying Person determines to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to accept the defense of such Third Party Claim, it shall defend such Third Party Claim with counsel of its own choice at its own expense, provided that, the Indemnified Person shall have the right to be represented by its own counsel at its own expense. If the Purchaser proceeds with Indemnifying Person fails to undertake the defense of or settle or pay any such Third Party ClaimClaim within ten (10) days after the Indemnified Person has given written notice to the Indemnifying Person of the claim, or if the applicable indemnifying Seller Indemnifying Person, after having given such notification to the Indemnified Person, fails within ten (10) days, or at any time thereafter, to defend to the reasonable satisfaction of the Indemnified Person, settle or pay such claim, then the Indemnified Person may take any and all necessary action to dispose of such claim subject to Section 6.5(b). The Indemnifying Person and the Indemnified Person shall make available to Purchaser each other and their counsel and accountants all books and records and information relating to any documents Third Party Claims, keep each other fully apprised as to the details and materials in their possession or control, reasonably requested by Purchaser, that progress of all proceedings relating thereto and render to each other such assistance as may be necessary reasonably required to ensure the proper and adequate defense of such any and all Third Party ClaimClaims.
(b) In the event the Sellers’ Representative does not assume The party controlling the defense of a Third Party Claim may settle such Third Party Claim in accordance with this Section 10.6on any terms which it may deem reasonable, provided that, the Purchaser Indemnitee shall have party controlling the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, defense shall not compromise and settle any indemnifiable matters related to Third Party Claims without the other parties’ prior written consent of the Sellers’ Representative settle or the applicable Purchaser Indemniteecompromise such proceeding, as the case may be, such consent not to be unreasonably withheld, delayedclaim or demand, or conditioned.
(d) If consent to the Sellers’ Representative assumes entry of any judgment which does not include as an unconditional term thereof the defense delivery by the claimant or plaintiff to such other party of a written release from all liability in respect of such third party proceeding, claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matteror demand.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alloy Inc)
Defense of Third Party Claims. (a) In PUB shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if provided that the SellersShareholders’ Representative agrees that shall have a participation right to the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Sellerextent set forth below, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by PUB in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and all amounts paid as experts’ fees and court or arbitration costs) shall be included in the Damages for which PUB may seek indemnification pursuant to a result of such Proceeding or the compromise or settlement thereofClaim made by any PUB Indemnified Person hereunder.
(cb) The SellersShareholders’ Representative may retain separate co-counsel and participate in the defense of any Third-Party Claim and the costs and expenses incurred by Shareholders’ Representative in connection with such defense or settlement (including attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be borne by the Purchaser IndemniteeShareholders’ Representative; provided however that at all times PUB shall retain control over the defense or settlements of any Third-Party Claim, as and PUB will not consent to the case may be, shall not compromise and settle entry of judgment or enter into any indemnifiable matters related settlement with respect to Third the Third-Party Claims Claim without the prior written consent of the SellersShareholders’ Representative or the applicable Purchaser Indemnitee, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless the SellersShareholders’ Representative assumes the defense of shall have objected within twenty (20) days after a written request for such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee consent by PUB. The Shareholders’ Representative shall have the rightright to receive copies of all pleadings, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability notices and communications with respect to the particular matter.
(e) If Third-Party Claim and PUB agrees, to the Sellersextent reasonable and appropriate, to consult with the Shareholders’ Representative undertakes to the extent that the Shareholders’ Representative participate in the defense of any Third Third-Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaim.
(fc) If the Sellers’ Representative undertakes the defense No settlement of any Third such Third-Party Claim in accordance with this Section 10.6, any third party claimant shall be determinative of the Purchaser Indemnitee shall not, so long as existence of or amount of Damages relating to such matter or the Sellers’ Representative zealously pursues the defense thereof, be entitled right to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofindemnification hereunder.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Vendors may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 8, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Vendors to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Vendors. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Vendors to assume the defense of any such Third Party Claim:claim or Proceeding: 44 49
(ia) subject the Vendors shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Vendors any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Vendors shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Vendors shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser provided, however, that the Purchaser shall not unreasonable withhold such consent; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Vendors to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Vendors to assume the defense of any such claim or Proceeding (or if, after initially designating the Vendors to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Vendors;
(ii) the Vendors shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Vendors that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Vendors informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Vendors; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Vendors shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.consent. 45 50
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Asia Online LTD)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, against Purchaser or against any other Person) with respect to which the Sellers any Selling Stockholder may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 10, Purchaser shall give the Stockholders' Representative prompt notice of the commencement of any such Legal Proceedings (a “Third Party Claim”provided, however, that any failure on the part of the Purchaser to so notify the Stockholders' Representative shall not limit any of the obligations of the Selling Stockholders under Section 10 (except to the extent such failure materially prejudice the defense of such Legal Proceedings), if .
(b) The Stockholders' Representative shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest proceed with the defense of such claim or otherwise protect against Legal Proceeding on its own with counsel reasonably satisfactory to Purchaser by delivering a written notice within three days after receiving notification of the commencement of any such Proceeding at the expense claim or Legal Proceeding, setting forth: (1) such election, and (2) confirming on behalf of each of the applicable SellerSelling Stockholders that the Selling Stockholders shall jointly and severally bear all responsibility and pay for all costs, expenses and damages associated with such Legal Proceedings (including any judgment entered into against Purchaser or any of its affiliates) regardless of whether the Purchaser and Selling Stockholders otherwise have an obligation under this Agreement to indemnify the Purchaser Indemnitee must cooperate in any Indemnitees with respect to such defense or other action. Notwithstanding Legal Proceedings, provided, however, that the foregoing, the Sellers’ Stockholders' Representative shall not have the right to assume proceed with the defense of such Third Party Claim if claim or Legal Proceedings to the extent that such Third Party Claimclaim or Legal Proceedings:
(i) seeks, if determined adversely in addition to Purchaser Indemniteeor in lieu of monetary damages, would be likely to any injunctive or other equitable relief;
(ii) may result in injunctions, equitable remedies Damages incurred by the Indemnitees with respect to which an Indemnitee will not be entitled to indemnification in full by the Selling Stockholders pursuant to Section 10 (including as a result of the fact that the amount remaining in the Escrow Fund at such time (that is not subject to outstanding indemnification claims that were not resolved prior to such date) is not sufficient to cover the Damages that may be incurred by the Indemnitees in connection with such claim or reputational damage Legal Proceedings); or
(iii) relates or arises in respect of such Purchaser Indemnitee. connection with Company IP.
(c) If the Sellers’ Stockholders' Representative so proceeds with the defense of such claim or Legal Proceedings in accordance with Section 10.4(b), then:
(i) it will be deemed conclusively established for purposes of this Agreement that all claims made in such claim or Legal Proceeding are within the scope of and are subject to the indemnification provisions set forth in Section 10, and neither the Selling Stockholders, nor the Stockholders' Representative on behalf of the Selling Stockholders, shall be permitted to contest the applicability of Section 10 to such claim or Legal Proceeding or to contest the Selling Stockholders' obligation to provide indemnification with respect thereto in full;
(ii) the Stockholders' Representative shall keep Purchaser informed of all material developments relating to such claim or Legal Proceeding;
(iii) each of the Indemnitees shall be entitled to participate (at their own expense) in the defense of such claim or Legal Proceeding; and
(iv) the Stockholders' Representative shall not be permitted to effect any settlement, adjustment or compromise of such Third Party ClaimLegal Proceeding or any of the claims made in connection therewith without the prior written consent of Purchaser unless: (A) such settlement, adjustment or compromise involves no finding or admission of any breach by any Indemnitee of any obligation to any other Person or any violation by any Indemnitee of any Legal Requirement; (B) such settlement, adjustment or compromise has no effect on any other claim that may be made against any Indemnitee; and (C) the sole relief provided in connection with such settlement, adjustment or compromise is monetary damages that are paid in full by the Selling Stockholders or any other relief that is enforceable only against the Selling Stockholders.
(d) If the Stockholders' Representative does not elect (within the three-day time period specified in Section 10.4(b)) to assume the defense of a Legal Proceeding in accordance with Section 10.4(b) or is not permitted to do so pursuant to the terms herein, then:
(i) subject to the other provisions of this Article XSection 10, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andSelling Stockholders;
(ii) if Purchaser shall use commercially reasonable efforts to keep the Sellers’ Stockholders Representative proceeds with the defense informed of any all material developments relating to such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession claim or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller Legal Proceeding;
(iii) each Selling Stockholder shall make available to Purchaser any documents and materials in their his possession or control, reasonably requested by Purchaser, control that may be necessary to the defense of such Third Party Claim.claim or Legal Proceeding; and
(biv) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the rightright to settle, but not the obligationadjust or compromise such claim or Legal Proceeding; provided, thereafter to defendhowever, contest that if Purchaser settles, adjusts or otherwise protect against the same and make compromises any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Legal Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may beStockholders' Representative, such consent settlement, adjustment or compromise shall not to be unreasonably withheld, delayed, or conditioned.
(d) If conclusive evidence of the Sellers’ Representative assumes the defense amount of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently Damages incurred by the Purchaser Indemnitee in connection with such claim or Legal Proceeding (it being understood that if Purchaser requests that the defense thereof.
(f) If the Sellers’ Stockholders' Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6consent to a settlement, adjustment or compromise, the Purchaser Indemnitee Stockholders' Representative shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal not unreasonably withhold or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofdelay such consent).
Appears in 1 contract
Sources: Stock Purchase Agreement (Silicon Graphics International Corp)
Defense of Third Party Claims. (a) In PUB shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if provided that the SellersShareholders’ Representative agrees that shall have a participation right to the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Sellerextent set forth below, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by PUB in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and all amounts paid as experts’ fees and court or arbitration costs) shall be included in the Damages for which PUB may seek indemnification pursuant to a result of such Proceeding or the compromise or settlement thereofClaim made by any PUB Indemnified Person hereunder.
(cb) The SellersShareholders’ Representative may retain separate co-counsel and participate in the defense of any Third-Party Claim and the costs and expenses incurred by the Shareholders’ Representative in connection with such defense or settlement (including attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be borne by the Purchaser IndemniteeShareholders’ Representative and subject to reimbursement pursuant to Section 9.9 below; provided, as however, that at all times PUB shall retain control over the case may bedefense or settlements of any Third-Party Claim, shall and PUB will not compromise and settle consent to the entry of judgment or enter into any indemnifiable matters related settlement with respect to Third the Third-Party Claims Claim without the prior written consent of the SellersShareholders’ Representative or the applicable Purchaser IndemniteeRepresentative, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless the SellersShareholders’ Representative assumes the defense of shall have objected within twenty (20) days after a written request for such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee consent by PUB. The Shareholders’ Representative shall have the rightright to receive copies of all pleadings, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability notices and communications with respect to the particular matter.
(e) If Third-Party Claim and PUB agrees, to the Sellersextent reasonable and appropriate, to consult with the Shareholders’ Representative undertakes to the extent that the Shareholders’ Representative participates in the defense of any Third Third-Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofClaim.
(fc) If the Sellers’ Representative undertakes the defense No settlement of any Third such Third-Party Claim in accordance with this Section 10.6, any third party claimant shall be determinative of the Purchaser Indemnitee shall not, so long as existence of or amount of Damages relating to such matter or the Sellers’ Representative zealously pursues the defense thereof, be entitled right to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofindemnification hereunder.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchaser, Purchaser against any other Indemnitee or against any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 10, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Seller. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own:
(i) the applicable indemnifying Seller shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(bii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iii) the Purchaser shall have the rightright to settle, but not the obligation, thereafter to defend, contest adjust or otherwise protect against the same and make any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative Seller; provided, however, that such settlement, adjustment or compromise shall not be considered conclusive evidence of the amount of Damages suffered or incurred by Purchaser or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditionedother Indemnitees.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers Selling Parties may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee of Purchaser’s Indemnitees pursuant to this Article X (a “Third Party Claim”)Section 5, if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right designate Seller to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely claim or Proceeding at the sole expense of Seller.
(b) If Purchaser so elects to Purchaser Indemnitee, would be likely designate Seller to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with assume the defense of any such Third Party Claim:
claim or Proceeding (i) subject Seller shall proceed to the other provisions of this Article Xdefend such claim or Proceeding in a diligent manner with counsel satisfactory to Purchaser, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession of Purchaser or control, reasonably requested by the Sellers’ Representative, its Affiliates that may be necessary to the defense of such Third Party Claimclaim or Proceeding, (iii) Seller shall keep Purchaser informed of all material developments and events relating to such claim or Proceeding, (iv) Purchaser shall have the right to employee its own counsel (at its expense) to participate in the defense of such claim or Proceeding, (v) Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of Purchaser; provided, however, that Purchaser shall not unreasonably withhold such consent, and (vi) Purchaser may at any time (notwithstanding the prior designation of Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding.
(c) If Purchaser does not elect to designate Seller to assume the defense of any such claim or Proceeding (or if, after initially designating Seller to assume such defense, Purchaser elects to assume such defense), Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claimclaim or Proceeding on its own (i) all expenses relating to the defense of such claim or Proceeding shall be borne and paid exclusively by the Selling Parties, (ii) the applicable indemnifying Seller Selling Parties shall make available to Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller or its Affiliates that may be necessary to the defense of such Third Party Claim.
claim or Proceeding, (biii) In the event the Sellers’ Representative does not assume the defense Purchaser shall keep Seller and Seller informed of all material developments and events relating to such Third Party Claim in accordance with this Section 10.6claim or Proceeding, the and (iv) Purchaser Indemnitee shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligationconsent of Seller; provided, thereafter to defendhowever, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, that Seller shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If Notwithstanding anything in this Agreement to the Sellers’ Representative assumes the defense contrary, if Purchaser determines in good faith that it is likely that a Proceeding may adversely affect it or its Affiliates other than as a result of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall monetary damages for which it would be entitled to control indemnification under this Agreement, Purchaser may, regardless of whether or not Purchaser had previously elected to allow the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect Proceedings to be conducted pursuant to Section 5.4(a) above, at any time by notice to the particular matterSelling Parties assume the exclusive right to defend, compromise or settle such Proceeding without the consent of the Selling Parties.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In The Purchaser shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and expenses incurred by the Purchaser Indemnitee must cooperate in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder.
(b) The Seller shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by the Seller does not affect any privilege relating to the Indemnified Person. At its option and expense, the Seller shall be entitled to participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeSeller, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless the Sellers’ Representative assumes Seller shall have objected within 15 days after a written request for such consent by the defense of Purchaser. In the event that the Seller has consented to any such third party claim in accordance with this Section 10.6settlement, the applicable Purchaser Indemnitee Seller shall not have any power or authority to object under any provision of this Article VIII to the right, but not amount of any claim by or on behalf of any Indemnified Person or the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement Upon receipt by any Person, other than a party hereto, Buyer Indemnified Party of notice of any claim actual or Proceeding possible claim, demand, suit, action, arbitration, investigation, inquiry or proceeding that has been or may be brought or asserted by a third party against such Buyer Indemnified Party and that may be subject to indemnification hereunder (whether against the Companyany such claim, Purchaser or excluding any other Person) with respect to which the Sellers may become obligated to hold harmlessTax Contest, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if Buyer (on behalf of such Buyer Indemnified Party) shall promptly give notice of such Third-Party Claim to the SellersEquityholders’ Representative agrees that indicating the applicable Seller shall indemnify nature of such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, Third-Party Claim and the Purchaser stated basis therefor and the Purchaser Indemnitee must cooperate in any amount of Damages claimed pursuant to such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If (the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third “Third-Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party ClaimNotice”).
(b) In Buyer shall determine and conduct the event investigation, defense or settlement of any Third-Party Claim, and the Sellerscosts and expenses incurred or paid by Buyer in connection with such investigation, defense or settlement (including attorneys’ fees, other professionals’ and experts’ fees, costs of investigation and court or arbitration costs) shall be included in the Damages for which Buyer may seek indemnification pursuant to a Claim made by any Buyer Indemnified Party hereunder. The Equityholders’ Representative shall have the right to employ separate counsel in such Third-Party Claim and participate in such defense thereof (but not control or conduct such defense), provided that the fees and expenses of such counsel shall be at the expense of Equityholders’ Representative (on behalf of the Equityholders). The Equityholders’ Representative shall have the right to receive copies of all pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such documents by the Equityholders’ Representative does not assume affect any privilege relating to the defense Buyer Indemnified Party. No settlement of any such Third Third-Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee any third party claimant shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims be made without the prior written consent of the SellersEquityholders’ Representative, (which shall not be unreasonably withheld, conditioned or delayed) and which shall be deemed to have been given unless the Equityholders’ Representative shall have objected within thirty (30) days after written request for such consent by the Buyer.
(c) Notwithstanding Section 9.5(a) or Section 9.5(b), after the Closing, Buyer shall control the conduct and resolution of any Tax Contest, provided, however, that to the extent any Tax Contest could reasonably give rise to an indemnification claim by a Buyer Indemnified Party, Buyer shall (i) notify the Equityholders’ Representative of such Tax Contest in writing within a reasonable period of time after its or the applicable Purchaser IndemniteeSurviving Corporation’s receipt of notice of a Tax Contest with respect to any Tax Return for a Pre- Closing Tax Period, as (ii) permit the case may beEquityholders’ Representative to evaluate and comment on such Tax Contest and (iii) reasonably and in good faith consider any such comments of the Equityholders’ Representative and request the Equityholders’ Representative’s consent to the resolution of any Tax Contest; and provided further that any failure by Buyer to provide any notice under this Section 9.5(c) to the Equityholders’ Representative will not relieve the Equityholders’ Representative of any obligation or liability to the Buyer Indemnified Parties, except and only to the extent that the Equityholders’ Representative demonstrates that it has been materially prejudiced by such failure by Buyer to timely provide such notice. No resolution of a Tax Contest without the consent of the Equityholders’ Representative (such consent not to be unreasonably withheld, conditioned or delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled dispositive of the right of a Buyer Indemnified Party to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect indemnification pursuant to the particular matterSection 9.2 hereof.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In Natus shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable SellerClaim , and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by Natus in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Damages for which Natus may seek indemnification pursuant to a Claim made by any Natus Indemnified Person hereunder.
(b) Stockholders shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by Stockholders does not affect any privilege relating to the Natus Indemnified Person and may participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Damages relating to such matter, except with the Purchaser Indemniteeconsent of Stockholders, as the case may be, which consent shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee delayed and which shall be deemed to have been given unless Stockholders shall have objected within 15 days after a written request for such consent by Natus. In the rightevent that Stockholders has consented to any such settlement, but Stockholders shall not have any power or authority to object under any provision of this Article VIII to the obligation, to participate at its own expense in defense thereof amount of any claim by counsel or on behalf of its own choosing, but any Natus Indemnified Person against the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability Escrow Cash or Stockholders for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (ai) In The Buyer Indemnifying Person or the event of Seller Indemnifying Person (each, an "Indemnifying Person"), as applicable, shall be entitled, at its expense, to participate in the assertion or commencement by any Person, other than a party hereto, defense of any claim or Proceeding (whether against the CompanyThird-Party Claim and to receive copies of all pleadings, Purchaser or any other Person) notices and communications with respect to which any Third-Party Claim (to the Sellers may become obligated extent that such participation and receipt of documents by the Indemnifying Person does not affect any privilege relating to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ RepresentativeIndemnified Person) and, at its electionoption (subject to the limitations set forth in this Section 10.5(d)), shall be entitled to defendassume control of such defense; provided, contest however, that, as a condition precedent to the Indemnifying Person's -------- ------- right to assume control of such defense, it must first (A) enter into an agreement with the Indemnified Person (in form and substance reasonably satisfactory to the Indemnified Person) pursuant to which the Indemnifying Person agrees to be fully responsible (with no reservation of rights) for all Damages relating to such Third-Party Claim and provide full indemnification (whether or not otherwise protect against required hereunder) to the Indemnified Person for all Damages relating to such Third-Party Claim, (B) unconditionally guarantee the payment and performance of any and all Liabilities which may arise with respect to such Proceeding at Third-Party Claim or the expense of facts giving rise to such Third-Party Claim (without regard to the applicable SellerSeller Basket or the Buyer Basket, as applicable, or the limitations set forth in Section 10.4), and (C) furnish the Purchaser Indemnified Person with reasonable evidence that the Indemnifying Person is and the Purchaser Indemnitee must cooperate in will be able to satisfy any and all such defense or other action. Liabilities.
(ii) Notwithstanding the foregoing, the Sellers’ Representative Indemnifying Person shall not have the right to assume control (or the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee Indemnified Person shall have the right, but not the obligation, thereafter right to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemniteetake back control, as the case may be) of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Person if the Third-Party Claim which the Indemnifying Person seeks to assume control (A) seeks non-monetary relief, (B) involves criminal or quasi-criminal allegations, (C) involves a claim to which the Indemnified Person reasonably believes an adverse determination would be detrimental or injurious to the Indemnified Person's reputation or future business prospects, or (D) involves a claim that, as determined by arbitration in accordance with the terms and provisions of Section 10.8, the Indemnifying Person failed or is failing to vigorously prosecute or defend.
(iii) If, pursuant to the terms of this Section 10.5(d), the Indemnifying Person is permitted to assume control of the defense of a Third-Party Claim and elects to do so, the Indemnified Person shall be entitled to receive copies of all pleadings, notices and communications with respect thereto (to the extent that such participation and receipt of documents by the Indemnified Person does not affect any privilege relating to the Indemnifying Person) and shall have the right to employ counsel separate from counsel employed by the Indemnifying Person in any such action and to participate in the defense thereof, but the fees and expenses of counsel employed by the Indemnified Person shall be at the expense of the Indemnified Person unless (A) the employment and payment of the Indemnified Person's counsel has been specifically authorized by the Indemnifying Person in writing or (B) the Indemnified Person has been advised by its counsel that a reasonable likelihood exists of a conflict of interest between the Indemnified Person and the Indemnifying Person. If the Indemnifying Person controls the defense of a Third-Party Claim in accordance with the provisions of Sections 10.4(d)(i) and 10.4(d)(ii), then the Indemnifying Person shall not compromise enter into any settlement of such Third-Party Claim or cease to defend such Third-Party Claim without obtaining the prior written consent of the Indemnified Person if, pursuant to or as a result of such settlement or cessation, (A) any injunction or other equitable relief shall be imposed against the Indemnified Person or (B) the Indemnified Person shall not be expressly and settle unconditionally released, with prejudice, from any indemnifiable matters related and all Liabilities with respect to Third such Third-Party Claims Claim and all other claims arising out of the same or similar facts and circumstances.
(iv) If, pursuant to this Section 10.5(d), the Indemnifying Person is not permitted to assume control of the defense of a Third-Party Claim or does not elect to do so, then the Indemnified Person shall control such defense and the costs and expenses incurred by the Indemnified Person in connection with such defense (including reasonable attorney's fees, other professionals' and experts' fees and court or arbitration costs) shall be included in the Damages for which the Indemnified Person may seek indemnification pursuant to a Claim made by such Indemnified Person hereunder. No Indemnified Person shall enter into any settlement of a Third-Party Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such Indemnifying Person (which consent shall not to be unreasonably withheld); provided, delayedhowever, that if the Indemnifying -------- ------- Person shall have consented in writing to any such settlement (or conditioneda portion thereof if such settlement also relates to a matter or matters for which indemnification is not provided hereunder) then the Indemnifying Person shall have no power or authority to object to any Claim by any Indemnified Person for indemnification under Section 10.2 for the amount of such settlement and the Indemnifying Person shall remain responsible for indemnifying the Indemnified Persons for all Damages incurred, resulting from, arising out of or caused by the Third-Party Claim to the fullest extent provided in this Article 10.
(dv) If Notwithstanding anything in this Section 10.5(d) to the Sellers’ Representative assumes contrary, if the Indemnifying Person risks material exposure (whether pursuant to its indemnification obligations under this Article 10 or otherwise) as a reasonably foreseeable result of the outcome of the Third-Party Claim giving rise to the Indemnified Person's Claim compared to the exposure risked by the Indemnified Person as a reasonably foreseeable result of the same, then the Indemnifying Person shall have to right to elect to cause the defense of such third party claim Third-Party Claim to be conducted jointly. In any such event, each of the Indemnified Person and the Indemnifying Person (without having to meet the conditions set forth in accordance with this clauses (A), (B) and (C) of Section 10.6, the applicable Purchaser Indemnitee 10.5(d)(i)) shall have the right, but not the obligation, right to employ separate counsel in such action and to participate at its own expense jointly (as further set forth below) in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(fvi) If In conducting any joint defense as provided in this Section 10.5, whichever of the Sellers’ Representative undertakes Indemnified Person and the defense Indemnifying Person risks greater exposure as a reasonably foreseeable result of any Third the outcome of the Third-Party Claim in accordance with this Section 10.6, giving rise to the Purchaser Indemnitee Indemnified Person's Claim shall not, be entitled to appoint its counsel as lead counsel of such defense so long as such counsel is reputable, nationally recognized and reasonably acceptable to the Sellers’ Representative zealously pursues other party (the defense thereof"Lead Counsel"). If the Indemnified Person, the Indemnifying Person and their respective counsel cannot agree on which party faces greater exposure as set forth above, then the Indemnified Person's counsel and the Indemnifying Person's counsel shall subject such dispute to a third counsel that is reputable, nationally recognized and selected jointly by the Indemnified Person's counsel and the Indemnifying Person's counsel, which third counsel shall make a final determination as to whether the Indemnified Person or the Indemnifying Person risks greater exposure. The fees and expenses of any such third counsel shall initially be borne equally by the Indemnified Person and the Indemnifying Person; provided, however, that all fees and expenses incurred by the -------- ------- Indemnified Person for the Lead Counsel, the Participating Counsel (as defined in Section 10.5(d)(vii)) and such third counsel shall be included in the Damages for which the Indemnified Person may seek indemnification pursuant to a Claim made by such Indemnified Person hereunder. For purposes of this Agreement and notwithstanding anything herein to the contrary, if the Indemnified Person is Buyer, DoveBid or any of their respective Affiliates and the outcome of the Third-Party Claim giving rise to the Indemnified Person's Claim can reasonably be expected to not insignificantly adversely impact the business, reputation or prospects of such Indemnified Person then the Indemnified Person shall be deemed to risk greater exposure as a reasonably foreseeable result of the outcome of the Third-Party Claim giving rise to the Indemnified Person's Claim and shall be entitled to recover from appoint its counsel as the applicable indemnifying SellerLead Counsel.
(vii) The Lead Counsel and the other party's counsel (which counsel shall be reputable, nationally recognized and reasonably acceptable to the other party) (the "Participating Counsel") shall jointly develop and implement a defense strategy. In furtherance of the foregoing, all significant decisions of the Lead Counsel shall be subject to the consent (not to be unreasonably withheld or delayed) of the Participating Counsel, including whether to (A) raise certain defenses, (B) bring certain counter-claims, (C) file any legal particular motion, (D) make any particular offer for settlement, (E) enter into any settlement, and (F) appeal. All decisions regarding which counsel shall handle particular matters (including conducting discovery, arguing motions, conducting trial and drafting court filings and briefs) shall be subject to the approval (not to be unreasonably withheld or other expenses subsequently incurred delayed) of the Participating Counsel, and the Lead Counsel shall endeavor, to the extent practical, to permit the active participation of the Participating Counsel (including by the Purchaser Indemnitee way of assuming primary responsibility for certain matters) in connection all such matters as co-counsel. All filings with the defense thereofcourt and correspondence with opposing counsel shall be subject to the reasonable review and comment (not to be unreasonably delayed) of the counsel not responsible for drafting such filing or correspondence.
Appears in 1 contract
Defense of Third Party Claims. (a) In The Indemnified Party shall determine and conduct the event of the assertion investigation, defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Third-Party Claim, if determined adversely unless both Purchaser and a Seller are named as a party to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Third-Party Claim, Purchaser in which case the Indemnified Party and Indemnitor Administrator shall each conduct the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents investigation, defense or settlement of such Third-Party Claim on its own behalf. The costs and materials in their possession expenses incurred or control, reasonably requested paid by the SellersIndemnified Party in connection with the investigation, defense or settlement (including reasonable attorneys’ Representativefees, that other professionals’ and experts’ fees, costs of investigation and court or arbitration costs) shall be included in the Losses for which the Indemnified Party may be necessary seek indemnification pursuant to a Claim made by any Indemnified Party hereunder, regardless of the defense resolution of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Third-Party Claim.
(b) In The Indemnitor Administrator shall at all times have the event right to receive copies of all pleadings, notices and communications with respect to the Sellers’ Representative Third-Party Claim to the extent that receipt of such documents by the Indemnitor Administrator does not assume affect any privilege relating to the defense of such Third Indemnified Party. The Indemnified Party Claim in accordance shall provide the Indemnitor Administrator the opportunity to consult with this Section 10.6, the Purchaser Indemnitee shall have the rightand participate in, but not to determine or conduct, any defense of the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise Third-Party Claim or settlement thereof and recover negotiations with respect to the entire cost thereof from Third-Party Claim, all at the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result sole expense of such Proceeding or the compromise or settlement thereofIndemnitor Administrator.
(c) The Sellers’ Representative or No settlement of any such Third-Party Claim with any third-party claimant shall be determinative of the Purchaser Indemniteeamount of Losses relating to such matter, as except with the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeIndemnitor Administrator, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee Indemnitor Administrator shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
objected within thirty (e30) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred days after written request for such consent by the Purchaser Indemnitee in connection with the defense thereofIndemnified Party.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Core-Mark Holding Company, Inc.)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Indemnitee or against any other Person) with respect to which Foudy (the Sellers "Indemnifying Party") may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Section 9, the Indemnifying Party Claim”), if shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Indemnifying Party. If the Sellers’ Representative proceeds with Indemnifying Party so elects to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Indemnifying Party shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Indemnifying Party any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third claim or Proceeding;
(c) the Indemnifying Party Claimshall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding at its own cost and expense; and
(e) the Indemnifying Party shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser, which shall not be unreasonably withheld. If the Indemnifying Party does not elect to assume the defense of any such claim or Proceeding, or if the Indemnifying Party fails to elect to assume the defense of any such claim or Proceeding, the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third claim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Indemnifying Party;
(ii) the Indemnifying Party Claim, the applicable indemnifying Seller shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Indemnifying Party that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Indemnifying Party informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edgewater Technology Inc/De/)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against the Company, against the Purchaser or against any other Person) (a “Third Party Claim”) with respect to which any of the Sellers Stockholders may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (6, and if an Indemnifying Party properly and timely delivers a “Response Notice, agreeing to be liable for the portion of the Damages of the Indemnified Party that are attributable to the Pre-Closing Period in connection with such Third Party Claim”), if Claim and intends to defend against such claim at the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for Indemnifying Party’s own cost and against any Damages resulting from such underlying claimexpense, then the Sellers’ RepresentativeIndemnifying Party shall have the right, at its electionelection and expense, shall be entitled to defendcontrol the defense of such claim or Legal Proceeding on its own, contest provided however, that the Stockholders or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative as an Indemnified Party shall not at all times have the right to assume participate in such defense at its own expense directly or through counsel. If the Indemnifying Party elects not to defend such claims, or if a Response Notice is not given in a timely manner as set forth above by the Indemnifying Party, the Indemnified Party may undertake the defense of any claim, liability or expense that is the subject of a Notice of Claim, provided however, that the Stockholders or the Purchaser as an Indemnifying Party shall at all times have the right to participate in such defense at its own expense directly or through counsel. Further, and notwithstanding anything to the contrary contained herein, in the event that the Purchaser determines in its reasonable judgment that, assuming a Third Party Claim was resolved in a manner adverse to the Purchaser, either (i) such Third Party Claim if could materially adversely affect its rights to conduct the Business after the Closing Date or (ii) such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to Claim could result in injunctionsDamages in an amount in excess of 200% the Escrow Amount, equitable remedies then the Purchaser may, by written notice to the Stockholders’ Agent, assume the exclusive right to control, defend, compromise, or reputational damage in respect settle such claim and the reasonable fees and expenses of counsel shall be considered Damages for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the status of such Purchaser Indemniteeaction, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto, shall furnish the other party with all documents and information that such other party shall reasonably request and shall consult with such other party prior to acting on major matters. If the Sellers’ Representative Indemnified Party so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andIndemnifying Party;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Indemnified Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Indemnifying Party any documents and materials in their his or its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding; CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or controlMARKED BY BRACKETS, reasonably requested by PurchaserHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereofAS AMENDED.
(c) the Indemnified Party shall have the right to settle, adjust or compromise such claim or Legal Proceeding with the consent of the Indemnifying Party; provided, however, that such consent shall not be unreasonably withheld, conditioned or delayed. The Sellers’ Representative Purchaser or the Stockholders’ Agent, as the case may be, shall give the Indemnifying Party prompt notice of the commencement of any such Legal Proceeding against Purchaser, Stockholders or the Company, as the case may be; provided, however, that any failure on the part of Purchaser Indemniteeor the Stockholders’ Agent to so notify the Indemnifying Party, as the case may be, shall not compromise and settle limit any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative obligations of the Purchaser or Stockholders under this Article 6 (except to the applicable Purchaser Indemnitee, as the case may be, extent such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes failure materially prejudices the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterLegal Proceeding).
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the CompanyPurchaser, Purchaser any other Indemnitee or any other Person) with respect to which the Sellers Seller may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Seller to assume the defense of such Third Party Claim claim or Proceeding at the sole expense of the Seller; provided that Seller’s obligation to bear the expense of assuming the defense of such claim shall be subject to the terms of Section 9.2(c), but only if and to the extent that the amount payable by the Seller under Section 9.2 with respect to such claim, if such Third Party Claim, if determined adversely to Purchaser Indemniteeclaim were decided in favor of the claimant, would be likely to result in injunctions, equitable remedies or reputational damage in respect limited by the terms of such Purchaser IndemniteeSection 9.2(c). If the Sellers’ Representative proceeds with Purchaser so elects to designate the Seller to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Seller shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Seller any non-privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Seller shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding at its own expense;
(e) the Seller shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Seller to assume the defense of such claim or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Seller to assume the defense of any such claim or Proceeding (or if, after initially designating the Seller to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claimclaim or Proceeding on its own:
(i) all expenses relating to the defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Seller; provided that Seller’s obligation to bear and pay the expense of Purchaser’s assumption of the defense of such claim shall be subject to the terms of Section 9.2(c), but only if and to the applicable indemnifying extent that the amount payable by the Seller under Section 9.2 with respect to such claim, if such claim were decided in favor of the claimant, would be limited by the terms of Section 9.2(c);
(ii) the Seller shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of the Seller that may be necessary to the defense of such Third Party Claim.claim or Proceeding;
(biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Seller informed of all material developments and events relating to such claim or Proceeding; and
(iv) the Purchaser shall have the rightright to settle, but not the obligation, thereafter to defend, contest adjust or otherwise protect against the same and make any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditionedSeller.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by 11.6.1 Acquirer shall defend any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred by Acquirer in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Damages for which Acquirer may seek indemnification pursuant to a Claim made by any Acquirer Indemnified Person hereunder.
11.6.2 The Representative shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim and may participate in settlement negotiations with respect to the Third-Party Claim, provided however to the extent that receipt of such Proceeding or documents by the compromise or Representative would affect any privilege of the Acquirer Indemnified Person with respect to such documents, the Acquirer Indemnified Person and the Representative shall enter into a joint defense agreement, upon terms consistent with the terms of this Agreement, with respect to such Third-Party Claim. No Acquirer Indemnified Person shall enter into any settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third of a Third-Party Claims Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such (which consent shall not to be unreasonably withheld); provided, delayedhowever, or conditioned.
(d) If that if the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have consented in writing to any such settlement, then the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled have been deemed to control accept the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability related Claim by any Acquirer Indemnified Person for indemnification under Section 11.2 with respect to the particular matteramount of such settlement and all other Damages related to such Third-Party Claim.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In Except as otherwise provided in Article 8, in the event of the assertion or commencement by any Person, other than a party hereto, of any claim or the commencement by any Person of any Proceeding against (whether against the Company, Purchaser or any other Personi) an Indemnitee with respect to which any of the Sellers Equityholder Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee the Buyer pursuant to this Article X 11 (each, a “Third Party Claim”), if the Sellers’ Representative agrees that Buyer shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if on its own; provided, however, that the Equityholder Representative and its counsel (at the Indemnitors’ sole expense) may participate in (but not control the conduct of) the defense of such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative Buyer so proceeds with the defense of any such Third Party Claim:
(ia) subject the Equityholder Representative shall, and shall use commercially reasonable efforts to the other provisions of this Article Xcause each Indemnitor to, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Buyer any documents and materials in their his possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim;
(b) the Buyer shall keep the Equityholder Representative reasonably informed regarding the status of such Third Party Claim; and
(c) the Buyer shall have the right to control, settle, adjust or compromise such Proceeding without the consent of the Equityholder Representative; provided, however, that except with the consent of the Equityholder Representative (which consent shall not be unreasonably withheld, conditioned or delayed), no settlement of any such Proceeding shall be determinative of either the fact that liability may be recovered by the Buyer in respect of such Third Party Claim pursuant to the indemnification provisions of this Article 11 or the amount of such liability that may be recovered by the Buyer in respect of such Third Party Claim pursuant to the indemnification provisions of this Article 11. If the Purchaser proceeds Equityholder Representative consents to such settlement, neither the Equityholder Representative nor any Equityholder Indemnitor will have any power or authority to object to the amount or validity of any claim by or on behalf of the Buyer for indemnity with respect such settlement. Buyer shall give the defense Equityholder Representative prompt notice of the commencement of any such Third Party ClaimClaim against Buyer; provided, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaserhowever, that may be necessary any failure on the part of Buyer to so notify the Equityholder Representative shall not limit any of the obligations of the Indemnitors under this Article 11 (except to the extent such failure prejudices the defense of such Third Party ClaimProceeding).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a A party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect entitled to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee indemnity pursuant to this Article X XI (a the “Third Indemnified Party”) shall determine and conduct the defense or settlement (subject to Section 11.4c)) of any Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and the Purchaser Indemnitee must cooperate expenses incurred such Indemnified Party in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ reasonable fees and court or arbitration costs) shall be included in the Damages for which such Indemnified Party may seek indemnification pursuant to a Claim made by any Buyer Indemnified Person or Company Indemnified Person hereunder.
(b) A party obligated to provide indemnification pursuant to this Article XI (the “Indemnifying Party”) shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by such Indemnifying Party does not affect any privilege relating to the Buyer Indemnified Person or Company Indemnified Person, as applicable, and may participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeIndemnifying Party, as the case may be, such which consent shall not to be unreasonably withheld, conditioned or delayed, or conditioned.
(d) If and which shall be deemed to have been given unless the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee Indemnifying Party shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterobjected within twenty Business Days after a written request for such consent.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phoenix Technologies LTD)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Legal Proceeding (whether against Merger Sub, the Company, Purchaser Parent or against any other Person) with respect to which the Sellers any Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 9, if Parent shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claimclaim or Legal Proceeding on its own with counsel reasonably satisfactory to the Shareholders' Agent; provided, if determined adversely to Purchaser Indemniteehowever, would be likely to result that the Shareholders' Agent may retain separate co-counsel at its sole cost and expense and participate in injunctions, equitable remedies or reputational damage in respect the defense of such Purchaser Indemniteeclaim or Legal Proceeding. If the Sellers’ Representative Parent so proceeds with the defense of any such Third Party Claimclaim or Legal Proceeding:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying Seller; andIndemnitors;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee each Indemnitor shall make available to the Sellers’ Representative Parent any documents and materials in their his possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If claim or Legal Proceeding; and
(c) Parent shall have the Purchaser proceeds right to settle, adjust or compromise such claim or Legal Proceeding with the defense consent of the Shareholders' Agent (as defined in Section 10.1); provided, however, that such consent shall not be unreasonably withheld. Parent shall give the Shareholders' Agent prompt notice of the commencement of any such Third Party ClaimLegal Proceeding against Parent or the Surviving Corporation and shall keep the Shareholders' Agent informed at all stages thereof; provided, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaserhowever, that may be necessary any failure on the part of Parent to so notify or inform the Shareholders' Agent shall not limit any of the obligations of the Indemnitors under this Section 9 (except to the extent such failure materially prejudices the defense of such Third Party ClaimLegal Proceeding).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In The Purchaser shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser costs and expenses incurred by the Purchaser Indemnitee must cooperate in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Indemnifiable Damages for which the Purchaser may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder.
(b) The Sellers shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by the Sellers does not affect any privilege relating to the Indemnified Person. At its option and expense, AMI shall be entitled to participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative No settlement of any such Third-Party Claim with any third party claimant shall be determinative of the existence of or amount of Indemnifiable Damages relating to such matter, except with the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such which consent shall not to be unreasonably withheld, delayed, conditioned or conditioned.
(d) If delayed and which shall be deemed to have been given unless any Seller shall have objected within 15 days after a written request for such consent by the Sellers’ Representative assumes Purchaser. In the defense of event that the Sellers have consented to any such third party claim in accordance with this Section 10.6settlement, the applicable Purchaser Indemnitee Sellers shall not have any power or authority to object under any provision of this Article VIII to the right, but not amount of any claim by or on behalf of any Indemnified Person against the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but Escrow Cash or the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability Sellers for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In Except with respect to a Tax Contest. Which shall be governed exclusively by Section 6.03,in the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers Seller may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee Indemnified Party pursuant to this Article X (a “Third Party Claim”)IX, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its electionelection and at its sole expense (but subject to Purchaser's right for indemnification hereunder), shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect of such Purchaser IndemniteeProceeding. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claimclaim or Proceeding:
(i1) subject the Seller shall use reasonable efforts to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Purchaser any documents documents, materials and materials other information in their its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If claim or Proceeding, make themselves available, and shall reasonably cooperate with Purchaser and its counsel in the Purchaser proceeds contest or defense (provided that any reasonable costs associated with the defense such efforts of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested be borne by Purchaser, that may be necessary to the defense of such Third Party Claim.);
(b2) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee Seller shall have the right, at its election and its sole expense, to participate in (but not to determine) the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result defense of such Proceeding claim or the compromise or settlement thereof.Proceeding;
(c3) The Sellers’ Representative or the Purchaser IndemniteeIndemnified Party shall promptly deliver to the Seller copies of all material notices and documents (including court papers) delivered by or to such Person relating to or in connection with such claim or Proceeding (to the extent not affecting not attorney client privilege or containing proprietary and/or confidential information thereof); and
(4) the Purchaser shall have the right to settle, as adjust or compromise such claim or Proceeding to consent to the case may beentry of any judgment; provided, shall not compromise and settle however, that if the Purchaser settles, adjusts, compromises or consents to any indemnifiable matters related to Third Party Claims such claim or Proceeding without the prior written consent of the Sellers’ Representative Seller, then (i) such settlement, adjustment or compromise shall not be conclusive evidence of the applicable amount of Losses incurred by the Purchaser IndemniteeIndemnified Party in connection with such claim or Proceeding (it being understood that if the Purchaser requests that the Seller consent to a settlement, as adjustment or compromise, the case may be, Seller shall not unreasonably withhold or delay such consent not consent) and (ii) any amount of such settlement in excess of amounts consented to by the Seller shall be unreasonably withheld, delayed, or conditioneddeemed Contested Amounts.
(db) The Purchaser shall give the Seller a written notice of the commencement of any such Proceeding against any Purchaser Indemnified Party. No delay in providing such notice shall affect a Purchaser Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Seller is prejudiced thereby.
(c) If the Sellers’ Representative assumes Purchaser does not elect to control the defense of any such Proceeding, the Seller may elect to control the defense of such third party claim or Proceeding with counsel reasonably satisfactory to the Purchaser; provided, however, that the Seller may not settle, adjust or compromise any such Proceeding or consent to the entry of any judgment, without the prior written consent of the Purchaser (which consent may not be unreasonably withheld or delayed), other than solely a monetary settlement of claims which are borne in accordance with this Section 10.6, whole by the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at Seller from its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matterresources).
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Share Purchase Agreement
Defense of Third Party Claims. (a) In the event of the assertion or commencement With respect to any claim by any PersonPurchaser Indemnitee under Section 7.1, other than relating to a third party heretoclaim or demand, Purchaser shall provide Avado, on behalf of all Sellers, with prompt written notice thereof in accordance with Section 9.4. The failure of any Purchaser Indemnitee to notify Avado of such claim or Proceeding (whether against the Company, Purchaser or shall not relieve Sellers of any other Person) liability that Sellers may have with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then except and only to the Sellers’ Representative, at its election, extent that such failure shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate result in any such defense or other actionmaterial prejudice to Sellers. Notwithstanding the foregoing, the Sellers’ Representative Sellers shall not have the right to assume defend the defense third party claim, at Sellers' expense and with counsel of such Third Party Claim if such Third Party Claim, if determined adversely its choice reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as provided that Avado so notifies the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayedIndemnitee within thirty (30) days, or conditioned.
such earlier date as a response to any proceeding may be required, after receipt of such notice, and provided further that the indemnified and indemnifying parties do not have materially conflicting or different interests (d) If the Sellers’ Representative assumes a "Disqualifying Conflict"). So long as Sellers are conducting the defense of such third party claim as provided in accordance with this Section 10.6the previous sentence, the applicable Purchaser Indemnitee may retain separate co-counsel at its sole cost and expense and may participate in the defense of such third party claim. In such cases where a Disqualifying Conflict exists, the costs and reasonable expenses of the Purchaser Indemnitee's separate legal co-counsel (but not more than one firm plus one local counsel in each relevant jurisdiction) will be borne by Sellers. The Sellers will not consent to the entry of any judgment or enter into any settlement with respect to such third party claim unless such judgment or settlement contains an unconditional term providing for a release to be given by the claimant in question or plaintiff to the Purchaser Indemnitee of and from all liability in respect of such third party claim. In the event the Sellers do not assume the defense of such third party claim as so provided, (x) the Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless defend against such third party claim and (y) Sellers will remain responsible for any Losses the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect may suffer as a result of such third party claim to the particular matter.
(e) full extent provided in this Section 7.2. If the Sellers’ Representative undertakes Sellers assume the defense of any Third Party Claim a third party claim, the Purchaser Indemnitees shall cooperate in accordance with this Section 10.6the settlement or compromise of, or defense against, such claim. Regardless of which party shall assume the defense of such third party claim, the Purchaser Indemnitee shall notprovide to Avado on request all information and documentation reasonably necessary to support and verify any Losses that give rise to any claim for indemnification and shall provide reasonable access to all books, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal records and personnel in their possession or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofunder their control that would have a bearing on such claim.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In Subject to the event provisions hereof, the Indemnitor on behalf of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume elect to defend any Third-Party Claim, and the costs and expenses incurred by the Indemnitor in connection with such defense by the Indemnitor (including attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs) shall be paid by the Indemnitor; provided that Sellers shall be deemed to have elected to defend the High Point Litigation. If the Indemnitor so elects, then the Indemnitee may participate, through counsel of its own choice and at its own expense, in the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Third-Party Claim.
(b) In Indemnitee shall give prompt written notice of any Third-Party Claim to the event Indemnitor; provided that (so long as such notice is given on or prior to the Sellers’ Representative does Survival Date, in the case of a Claim relating to a Limited-Indemnity Item) the failure timely to give such notice shall not limit or reduce the Indemnitee’s right to indemnity hereunder unless (and then only to the extent that) the Indemnitor is prejudiced thereby. The Indemnitor shall be entitled to assume the defense thereof utilizing legal counsel reasonably acceptable to the Indemnitee; provided that the Indemnitor shall not be entitled to assume control of such Third Party Claim defense and shall pay the fees and expenses of counsel retained by the Indemnitee if the claim for indemnification relates to or arises in accordance connection with this Section 10.6any criminal proceeding, the Purchaser Indemnitee shall have the rightaction, but not the obligationindictment, thereafter to defend, contest allegation or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereofinvestigation.
(c) The Sellers’ Representative or If the Purchaser Indemnitor has the right to and does elect to defend any Third-Party Claim, the Indemnitor shall, at the Indemnitee’s request, as permit the case may be, shall not compromise Indemnitee and settle any indemnifiable matters related its counsel to Third Party Claims without confer on the prior written consent conduct of the Sellers’ Representative defense thereof. Purchaser and Sellers shall make available to each other and each other’s counsel and accountants, without charge, all of its or their books and records relating to the applicable Purchaser IndemniteeThird-Party Claim, and each party will render to the other party such assistance as may be reasonably required in order to insure the case proper and adequate defense thereof and shall furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be, such consent not to be unreasonably withheld, delayed, or conditionedreasonably requested by the other party in connection therewith.
(d) If the Sellers’ Representative assumes Indemnitor has the defense of such third party claim in accordance with this Section 10.6right to and does elect to defend any Third-Party Claim, the applicable Purchaser Indemnitee Indemnitor shall have the right, but right to enter into any settlement of a Third-Party Claim without the consent of the Indemnitee; provided that (i) such settlement does not involve any injunctive or other equitable relief binding upon the obligation, to participate at its own expense in defense thereof by counsel Indemnitee or any of its own choosingAffiliates, but and (ii) such settlement expressly and unconditionally releases the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from all liability with respect to such claim, without prejudice, other than the particular matterobligation to pay any amount that the Indemnitor pays or causes to be paid.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Regal Entertainment Group)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers Stockholders may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X IX (a “Third Party Claim”), if Purchaser shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteethe Stockholders’ Representative. If the Sellers’ Representative Purchaser so proceeds with the defense of any such Third Party Claim:
(i) subject only to the other provisions of this Article Xextent that a final determination has been made that an Indemnitee is entitled to indemnification pursuant to Section 9.6, all the actual and reasonable out-of-pocket expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andStockholders;
(ii) if the SellersStockholders’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Purchaser any documents and materials in their his and in the Company’s possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. ; and
(iii) Purchaser may not settle, adjust or compromise such Third Party Claim without the consent of the Stockholders’ Representative (it being understood that if Purchaser requests that the Stockholders’ Representative consent to a settlement, adjustment or compromise, the Stockholders’ Representative shall not unreasonably withhold or delay such consent).
(b) If the Purchaser proceeds does not elect to proceed with the defense of any such Third Party Claim, the applicable indemnifying Seller Stockholders’ Representative shall make available proceed with the defense of such Third Party Claim with counsel reasonably satisfactory to Purchaser any documents and materials in their possession or controlPurchaser; provided, reasonably requested by Purchaserhowever, that the Stockholders’ Representative may not settle, adjust or compromise any such Third Party Claim without the prior written consent of Purchaser (which consent may not be necessary unreasonably withheld or delayed). Purchaser shall give the Stockholders’ Representative prompt notice of the commencement of any such Third Party Claim against any Indemnitee; provided, however, that any failure on the part of Purchaser to so notify the Stockholders’ Representative shall not limit any of the obligations of the Stockholders under this Article IX (except to the extent such failure materially prejudices the defense of such Third Party Claim).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Appfolio Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding legal proceeding (“Legal Proceeding”) (whether against the Company, Purchaser against any other indemnitee or against any other Person) with respect to which any of the Sellers Stockholders may become obligated to indemnify, hold harmless, indemnifypay, compensate or reimburse any Purchaser Indemnitee Parent, their officers, directors or affiliates (“Parent Indemnitee”) pursuant to this Article X VII, (a “Third Party Claim”i) Parent, as soon as practicable after it receives written notice of any such claim or Legal Proceeding shall notify the Stockholders’ Representatives of such claim or Legal Proceeding (it being understood that the failure to notify the Stockholders’ Representatives shall not in any way limit the rights of the Parent Indemnitees under this Agreement unless such failure materially prejudices the rights or defenses available to the Stockholders’ Representatives), if and (ii) the SellersStockholders’ Representative agrees that the applicable Seller Representatives shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume participate in the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Legal Proceeding at the sole expense of such Purchaser Indemniteethe Stockholders. If the SellersStockholders’ Representative proceeds with Representatives so participates in the defense of any such Third Party Claim:
(i) subject claim or Legal Proceeding, the Stockholders’ Representatives shall acknowledge in writing the obligation of the Stockholders to indemnify the other provisions relevant Parent Indemnitee against any Losses that may result from such claim or Legal Proceeding. Parent shall proceed with the defense of this Article X, such claim or Legal Proceeding and: all reasonable expenses relating to the defense of such Third Party Claim claim or Legal Proceeding shall be borne and paid exclusively by the applicable indemnifying SellerStockholders in the manner and to the extent contemplated by the Escrow Agreement and Section 7.2 hereof; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Stockholders shall make available to the Sellers’ Representative Parent any documents and materials in their the possession or control, reasonably requested by control of any of the Sellers’ Representative, Stockholders that may be necessary to the defense of such Third Party Claim. If claim or Legal Proceeding; Parent shall keep the Purchaser proceeds with the defense Stockholders’ Representatives informed of any all material developments and events relating to such Third Party Claim, the applicable indemnifying Seller claim or Legal Proceeding; and Parent shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the rightright to settle, but not the obligation, thereafter to defend, contest adjust or otherwise protect against the same and make any compromise such claim or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Legal Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the SellersStockholders’ Representative or Representatives, provided, however, that the applicable Purchaser Indemnitee, as the case may be, Stockholders’ Representatives shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Tellabs Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of With respect to any claim by Purchaser or Proceeding (whether against the CompanyHospitality under Section 8.1, relating to a third party claim or demand, Purchaser or Hospitality shall provide Seller with prompt written notice thereof in accordance with Section 10.4 and Seller may defend, in good faith and at its expense by legal counsel chosen by it and reasonably acceptable to Purchaser and Hospitality any other Person) with respect such claim or demand, and Purchaser and Hospitality, at their expense, shall have the right to which participate in the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse defense of any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable such third party claim. So long as Seller shall indemnify is defending in good faith any such Purchaser Indemnitee for and against any Damages resulting from such underlying third party claim, then Purchaser and Hospitality shall not settle or compromise such third party claim. In any event, Purchaser and Hospitality shall cooperate in the Sellers’ Representativesettlement or compromise of or defense against, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other actionasserted claim. Notwithstanding the foregoing, Seller shall obtain the Sellers’ Representative consent of Purchaser and Hospitality, which consent shall not be unreasonably withheld, prior to setting any such third party claim. In the event the Seller shall notify the Purchaser and Hospitality that it disputes any claim made by the Purchaser or Hospitality and/or it shall fail to defend such claim actively and in good faith, then the Purchaser and Hospitality shall have the right to assume conduct a defense against such claim and shall have the defense right to settle and compromise such claim without the consent of the Seller. Once the amount of such Third Party Claim if such Third Party Claimclaim is liquidated and the claim is finally determined, if determined adversely the Purchaser and Hospitality shall be entitled to Purchaser Indemnitee, would be likely pursue each and every remedy available to result it at law or in injunctions, equitable remedies or reputational damage equity (through the procedure specified in respect of such Purchaser Indemnitee. If Section 8.5) to enforce the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other indemnification provisions of this Article XVIII and, in the event it is determined, or the Seller agrees, that it is obligated to indemnify the Purchaser and Hospitality for such claim, the Seller agrees to pay all costs, expenses and fees, including all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claimattorneys' fees, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that which may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee or Hospitality in connection with the defense thereofattempting to enforce indemnification under this Article VIII.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In A Buyer Indemnified Party shall give prompt written notice to Seller and the event other Control Parties of the commencement or assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against third-party action in respect of which such Buyer Indemnified Party shall seek indemnification hereunder. Any failure so to notify Seller and the Company, Purchaser or other Control Parties shall not relieve Seller and the other Control Parties from any other Person) with respect liability that they may have to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to such Buyer Indemnified Party under this Article X (a “Third Party Claim”)IX, if unless the Sellers’ Representative agrees that the applicable failure to give such notice materially and adversely prejudices Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser other Control Parties. Seller and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative Control Parties shall not have the right to assume control of the defense of, settle, or otherwise dispose of such third-party action on such terms as they deem appropriate; provided, however, that:
(a) The Buyer Indemnified Party shall be entitled, at his, her, or its own expense, to participate in the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.third-party action;
(b) In Seller and the event other Control Parties shall obtain the Sellers’ Representative does prior written approval of the Buyer Indemnified Party, which approval shall not assume be unreasonably withheld or delayed, before entering into or making any settlement, compromise, admission, or acknowledgment of the defense validity of such Third Party Claim third-party action or any liability in accordance with this Section 10.6respect thereof if, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter pursuant to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding settlement, compromise, admission, or acknowledgment, injunctive or other equitable relief would be imposed against the compromise Buyer Indemnified Party or settlement thereof.if, in the reasonable opinion of the Buyer Indemnified Party, such settlement, compromise, admission, or acknowledgment would have a material adverse effect on its business or, in the case of a Buyer Indemnified Party who is a natural person, on his or her assets or interests;
(c) The Sellers’ Representative Seller and the other Control Parties shall not consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Buyer Indemnified Party of a release from all liability in respect of such third-party action;
(d) Seller and the other Control Parties shall not be entitled to control (but shall be entitled to participate at their own expense in the defense of), and the Buyer Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission, or acknowledgment of any third-party action (i) as to which Seller and the other Control Parties fail to assume the defense within a reasonable length of time after giving notice to Seller and the other Control Parties or (ii) to the extent the third-party action seeks an order, injunction, or other equitable relief against the Buyer Indemnified Party which, if successful, would materially adversely affect the business, operations, assets, or financial condition of the Buyer Indemnified Party; provided, however, that the Buyer Indemnified Party shall make no settlement, compromise, admission, or acknowledgment which would give rise to liability on the part of Seller or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims other Control Parties without the prior written consent of Seller and the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.other Control Parties;
(e) If Seller and the Sellers’ Representative undertakes other Control Parties shall make payments of all amounts required to be made pursuant to the defense foregoing provisions of any Third this Article IX to or for the account of the Buyer Indemnified Party Claim from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due and payable, provided that the Buyer Indemnified Party has agreed in accordance with this Section 10.6, writing to reimburse Seller and the Purchaser Indemnitee shall not, so long as other Control Parties for the Sellers’ Representative does full amount of such payments if the Buyer Indemnified Party is ultimately determined not abandon the defense thereof, to be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee such indemnification; and
(f) The parties hereto shall extend reasonable cooperation in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with third-party action pursuant to this Section 10.6Article IX and, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereoftherewith, shall furnish such records, information, and testimony and attend such conferences, discovery proceedings, hearings, trials, and appeals as may be reasonably requested.
Appears in 1 contract
Sources: Asset Purchase Agreement (Prime Medical Services Inc /Tx/)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, Person (other than a party heretoParent, Purchaser or any of their Affiliates) of any claim or Legal Proceeding (whether against the Company, Parent, Purchaser or any other Person) with respect to which the Sellers any Selling Shareholder may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 11 (a “Third Third-Party Claim”)) Parent and Purchaser shall have the right, if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for in their sole discretion and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its their election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemniteeon their own with reputable counsel. If the Sellers’ Representative proceeds Parent and Purchaser so proceed with the defense of any such Third Third-Party Claim:
(ia) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the The Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee each Selling Shareholder shall make available to the Sellers’ Representative Parent and Purchaser any documents and materials in their its possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Third-Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Parent and Purchaser Indemnitee shall have the rightright in their sole discretion to settle, but not the obligationadjust, thereafter to defend, contest resolve or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Third-Party Claims Claim without the prior written consent of the Sellers’ Representative Representative; provided, however, the costs and expenses incurred by a Purchaser Indemnitee in connection with the investigation, negotiation, settlement, adjustment, resolution or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense compromise of such third party claim Third-Party Claim (including the expenses of outside counsel, other professionals’ and experts’ fees and court or arbitration costs) shall not be included in accordance with the Damages for which a Purchaser Indemnitee is entitled to indemnification pursuant to such Third-Party Claim and such costs and expenses shall not constitute Damages subject to indemnification under this Section 10.611 unless the Parties agree or it is ultimately determined that such Third-Party Claim itself is indemnifiable under this Agreement; provided, the applicable Purchaser Indemnitee shall have the rightfurther, but not the obligationno settlement, to participate at its own expense in defense thereof by counsel adjustment, resolution or compromise of its own choosing, but the Sellers’ Representative a Third-Party Claim shall be entitled determinative of the existence or amount (other than Damages awarded pursuant to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(ea final judgment) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently Damages incurred by the Purchaser Indemnitee in connection with such Third-Party Claim or whether the defense thereof.
(f) If Purchaser Indemnitee is entitled to indemnification pursuant to this Agreement in connection with such Third-Party Claim unless the Sellers’ Representative undertakes has consented in writing to such settlement or resolution (it being understood that if Parent and Purchaser request that the Sellers’ Representative consent to a settlement, adjustment or compromise, the Sellers’ Representative shall not unreasonably withhold or delay such consent). With respect to each such Third-Party Claim that Parent and Purchaser are defending, Parent and Purchaser shall make available to the Sellers’ Representative copies of complaints, pleadings, material notices and material third party communications, subject to execution by the Sellers’ Representative of Parent’s and/or Purchaser’s standard form of nondisclosure agreement, and Parent and Purchaser shall keep the Sellers’ Representative reasonably informed with respect to all material developments related to such Third-Party Claim; provided, however, Parent and Purchaser shall have no obligation to provide any of the foregoing if (1) providing any of such information would cause any loss of any attorney-client privilege, attorney work product privilege or any other legal privilege; (2) any of such information is subject to any confidentiality obligation that prohibits Parent and Purchaser from sharing such information with the Sellers’ Representative; or (3) with respect to any claim or Legal Proceeding with a Governmental Body only, Parent and Purchaser reasonably determine that any of such information should remain confidential and should not be provided to the Sellers’ Representative.
(c) If Parent and Purchaser do not elect to proceed with the defense of any Third such Third-Party Claim in accordance with this Section 10.6Claim, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection may proceed with the defense thereofof such Third-Party Claim with counsel reasonably satisfactory to Parent and Purchaser; provided, however, the Sellers’ Representative may not settle, adjust or compromise any such Third-Party Claim without the prior written consent of Parent and Purchaser (which consent may not be unreasonably withheld or delayed).
(d) Parent and Purchaser shall give the Sellers’ Representative prompt notice after discovery thereof of the commencement of any such Third-Party Claim against Parent and Purchaser or any other Purchaser Indemnitee; provided, however, any failure on the part of Parent and Purchaser to so notify the Sellers’ Representative shall not limit any of the obligations of the Selling Shareholders under this Section 11 (except to the extent such failure materially prejudices the defense of such Third-Party Claim).
Appears in 1 contract
Defense of Third Party Claims. (aA) In the event that the Seller notifies the Purchaser during the Third Party Claim Review Period that it elects to control the defense of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), then until such time, if the Sellers’ Representative agrees any, as it is determined or agreed that the applicable Seller has no liability to the Purchaser in respect of such Third Party Claim, the Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right (but not the obligation) to assume control the defense of such Third Party Claim if and may retain counsel of its choice to represent the Purchaser or the Company and shall pay the fees and disbursements of such counsel. To the extent requested by the Seller, the Purchaser shall and shall cause the Company to take such actions, provide such information, document, data as the Seller shall consider reasonably necessary or appropriate under the circumstances and to cooperate with the Seller and its counsel in contesting any such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be and shall refrain from taking any action likely to result in injunctions, equitable remedies jeopardize or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds interfere with the defense of such claim. The Purchaser or the Company may assist, at its expense, in the defense against any such Third Party Claim with counsel of its choice.
(B) In the event that the Seller (x) does not elect to control the defense of a Third Party Claim:
, (iy) subject fails to elect to control the other provisions defense of this Article Xa Third Party Claim on a timely basis, all or (z) having elected to control the defense of a Third Party Claim on a timely basis, fails to assume control of any such defense with reasonable expenses relating promptness after written demand to such effect by the Purchaser, the Purchaser shall conduct or shall procure that the Company conducts the defense of such Third Party Claim shall be borne (subject to subsection (iv) below) in good faith and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser using all reasonable means and the Purchaser Indemnitee shall make defenses available to it or to the Sellers’ Representative Company and shall have the right to retain counsel of its choice. The Purchaser or the Company shall keep the Seller timely informed of the development of the underlying claim. At any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to time during the defense of such Third Party Claim. If , the Purchaser proceeds with Seller shall have the right (x) to retain counsel of its choice, at its expense, and (y) to make such recommendation as it deems appropriate for the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such said Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. Except with respect to the Specified Claims, which is covered by Section 5.6:
(a) In Buyer shall determine and conduct the event of the assertion defense or commencement by any Person, other than a party hereto, settlement of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Third-Party Claim”), if and, except as otherwise provided in this Agreement, the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for reasonable costs and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate expenses incurred by Buyer in any connection with such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
settlement (i) subject to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements other professionals’ and experts’ fees and court or arbitration costs) shall be included in the Damages for which Buyer may seek indemnification pursuant to a Claim made by any Indemnified Person hereunder.
(b) Seller shall have the right to receive copies of all amounts paid as a result pleadings, notices and communications with respect to the Third-Party Claim to the extent that receipt of such Proceeding documents by Seller does not affect any privilege relating to the Indemnified Person and may participate in, but not to determine or conduct, any defense of the compromise Third-Party Claim or settlement thereofnegotiations with respect to the Third-Party Claim.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, Buyer shall not compromise and settle any indemnifiable matters related to Third such Third-Party Claims Claim with any third party without the prior written consent of the Sellers’ Representative or the applicable Purchaser IndemniteeSeller, as the case may be, such which consent shall not to be unreasonably withheld, conditioned or delayed and which shall be deemed to have been given unless Seller shall have objected within fifteen (15) Business Days after a written request for such consent by Buyer. In the event that Seller has consented to any such settlement or such consent shall have been unreasonably withheld, conditioned or delayed, Seller shall not have any power or conditioned.
(d) If authority to object under any provision of this Article 7 to the Sellers’ Representative assumes the defense amount of such third party any claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel or on behalf of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying any Indemnified Person against Seller from liability for indemnity with respect to the particular mattersuch settlement.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Mips Technologies Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than Person who is not a party hereto, Party to this Agreement or an Affiliate of a Party to this Agreement (or a Representative of the foregoing) of any claim or Proceeding Action (whether against the Company, any Company Subsidiary, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse indemnify any Purchaser Indemnitee pursuant to this Article X Section 8 (a “Third Third-Party Claim”), if Purchaser shall give the Sellers’ Representative agrees (if such Third-Party Claim would be with respect to a claim pursuant to Section 8.2(b)) or the applicable Seller (if such Third-Party Claim would be with respect to a claim pursuant to Section 8.2(a)) prompt notice thereof (the “Indemnification Notice”); provided, however, that any failure on the part of Purchaser to so notify the Sellers’ Representative or the applicable Seller shall indemnify such Purchaser Indemnitee for and against not limit any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and obligations of the Purchaser and the Purchaser Indemnitee must cooperate in any such defense Sellers or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
under this Section 8 (i) subject except to the other provisions of this Article X, all reasonable expenses relating to the defense of extent such Third Party Claim shall be borne and paid exclusively Persons are materially prejudiced thereby). The Indemnification Notice by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any Purchaser shall describe such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Third-Party Claim in accordance with this Section 10.6reasonable detail, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement include copies of all material written evidence thereof and recover shall indicate the entire cost thereof from estimated amount, if reasonably practicable, of the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding Damages that has been or may be sustained by the compromise or settlement thereof.
(c) Indemnitees. The Sellers’ Representative or the Purchaser Indemnitee, applicable Seller with respect to which the Indemnification Notice is to be provided in accordance with this Section 8.5 shall be referred to as the case “Responsible Indemnitor”.
(b) Purchaser may be(without prejudice to the right of the Sellers’ Representative to fully participate at its own expense through counsel of its own choosing) control the defense, shall not settlement, adjustment or compromise and settle of such Third-Party Claim by counsel or other representatives of its own choosing, if Purchaser gives written notice to the Responsible Indemnitor of its intention to do so no later than thirty (30) days following its delivery of the Indemnification Notice; provided, however, that any indemnifiable matters related to Third such Third-Party Claims Claim that is settled, adjusted or compromised without the prior written consent of the Responsible Indemnitor (which may be withheld in the Responsible Indemnitor’s sole discretion) shall not be determinative of the existence or amount of Damages thereunder (it being understood that if the Responsible Indemnitor has provided its prior written consent to an applicable settlement, adjustment or compromise, neither the Sellers’ Representative nor any Seller shall have any power or authority to object under any provision of this Section 8 to the applicable amount of such settlement, and the Indemnitees shall be entitled to recover the entire amount of such settlement and all other Damages relating to such Third-Party Claim from the Sellers in accordance with the terms and limitations set forth in this Agreement).
(c) If Purchaser Indemniteedoes not so choose to assume control of the defense, as settlement, adjustment or compromise of any such Third-Party Claim within the case may beaforementioned thirty (30) day period, then the Responsible Indemnitor shall have the right, at its election, to proceed with the defense of such Third-Party Claim on its own with counsel reasonably satisfactory to Purchaser; provided, however, that the Responsible Indemnitor shall not settle, adjust, compromise or consent to a judgment of a Third-Party Claim without the prior written consent of Purchaser (such consent not to be unreasonably withheld, delayed, delayed or conditioned).
(d) If the Sellers’ Representative assumes Responsible Indemnitor undertakes the defense, settlement, adjustment or compromise of any Third-Party Claim pursuant to Section 8.6(c):
(i) The Indemnitee shall reasonably cooperate in the defense thereof, and Purchaser shall make available (and cause the Indemnitees, the Company and the Company Subsidiaries to make available) to the Responsible Indemnitor any documents or other materials in such applicable Person’s possession or control or in the control of such Person’s Representatives or Affiliates that may be reasonably necessary for or relevant to the defense of such third party claim in accordance with this Section 10.6, Third-Party Claim to the applicable extent that the disclosure or the availability of such documents or materials does not adversely affect any privilege relating to such Person; and
(ii) Purchaser Indemnitee shall have the rightright to receive copies of all pleadings, notices and communications with respect to such Third-Party Claim to the extent that receipt of such documents by Purchaser does not adversely affect any privilege relating to the Responsible Indemnitor or Sellers and the Responsible Indemnitor shall provide Purchaser the opportunity to consult with and participate in (at Purchaser’s own cost and expense), but not the obligationto determine or conduct, to participate at its own expense in defense thereof by counsel any defense, settlement, adjustment or compromise of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular mattersuch Third-Party Claim.
(e) If Purchaser proceeds with the Sellers’ Representative undertakes defense, settlement, adjustment or compromise of any Third-Party Claim:
(i) the Responsible Indemnitor shall reasonably cooperate in the defense thereof and the Responsible Indemnitor shall make available (and cause the Sellers to make available, as applicable) to Purchaser any documents or other materials in such applicable Person’s possession or control or in the control of such Person’s Representatives or Affiliates that may be reasonably necessary for or relevant to the defense of any Third such Third-Party Claim in accordance with this Section 10.6, to the Purchaser Indemnitee shall not, so long as extent that the Sellers’ Representative disclosure or the availability of such documents or materials does not abandon adversely affect any privilege relating to such Person; and
(ii) the defense thereofResponsible Indemnitor shall have the right to receive copies of all pleadings, be entitled notices and communications with respect to recover from such Third-Party Claim to the applicable indemnifying Sellerextent that receipt of such documents by the Responsible Indemnitor does not adversely affect any privilege relating to the Indemnitee or Purchaser and Purchaser shall provide the Responsible Indemnitor the opportunity to consult with and participate in (at the Responsible Indemnitor’s own cost and expense), but not to determine or conduct, any legal defense, settlement, adjustment or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofcompromise of such Third-Party Claim.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, Person of any claim or Proceeding (whether against the Company, Purchaser against any other Selling Shareholders or against any other Person) with respect to which any of the Sellers Indemnitors may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”)Section 4, if the Sellers’ Representative agrees that Purchaser shall have the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at designate the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Agent to assume the defense of such Third Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies claim or reputational damage in respect Proceeding at the sole expense of such Purchaser Indemniteethe Selling Shareholders. If the Sellers’ Representative proceeds with Purchaser so elects to designate the Agent to assume the defense of any such Third Party Claimclaim or Proceeding:
(ia) subject the Agent shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to the other provisions of this Article X, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; andPurchaser;
(iib) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative Agent any non- privileged documents and materials in their the possession or control, reasonably requested by of the Sellers’ Representative, Purchaser that may be necessary to the defense of such Third Party Claimclaim or Proceeding;
(c) the Agent shall keep the Purchaser informed of all material developments and events relating to such claim or Proceeding;
(d) the Purchaser shall have the right to participate in the defense of such claim or Proceeding;
(e) the Agent shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of the Purchaser; and
(f) the Purchaser may at any time (notwithstanding the prior designation of the Agent to assume the defense of such claim 31. or Proceeding) assume the defense of such claim or Proceeding. If the Purchaser does not elect to designate the Agent to assume the defense of any such claim or Proceeding (or if, after initially designating the Agent to assume such defense, the Purchaser elects to assume such defense), the Purchaser may proceed with the defense of such claim or Proceeding on its own. If the Purchaser so proceeds with the defense of any such Third Party Claim, claim or Proceeding on its own: (i) all expenses relating to the applicable indemnifying Seller defense of such claim or Proceeding (whether or not incurred by the Purchaser) shall be borne and paid exclusively by the Selling Shareholders; (ii) the Selling Shareholders shall make available to the Purchaser any documents and materials in their the possession or control, reasonably requested by Purchaser, control of any of the Selling Shareholders that may be necessary to the defense of such Third Party Claim.
claim or Proceeding; (biii) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall keep the Agent informed of all material developments and events relating to such claim or Proceeding; and (iv) the Purchaser shall have the rightright to settle, but not adjust or compromise such claim or Proceeding with the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or Agent; provided, however, that the applicable Purchaser Indemnitee, as the case may be, Agent shall not unreasonably withhold such consent not to be unreasonably withheld, delayed, or conditionedconsent.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Plan of Reorganization and Stock Purchase Agreement (Javelin Systems Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, Person other than a party hereto, Parent or Merger-Sub of any claim claim, Tax, proceeding or Proceeding the imposition of any penalty or assessment (whether against the Company, Purchaser its subsidiaries, the Parent, or any other Person) with respect to which the Sellers Company or any Shareholder may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X Section 10 (a “Third Third-Party Claim”), if the SellersParent shall give the Shareholders’ Representative agrees that prompt written notice of the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against commencement of any such Proceeding at Third Party Claim. The Shareholders acting through the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the SellersShareholders’ Representative shall not have the right right, at their election and expense, to assume and control the defense and settlement of such Third party Claim, provided that they notify the Parent of their decision to do so within 10 (ten) Business Days upon receipt of written notice from the Parent of such Third Party Claim, and for such purpose will be provided from time to time with such powers of attorney and other documents as required for the conduct of such defense by the Shareholders and their legal counsels; provided, however, that the Shareholders may not elect to assume or control the defense, appeal or settlement of any Third Party Claim if unless: (a) the sole remedy sought by the plaintiff in such Third Party Claim is monetary damages, (b) the Shareholders acknowledge and agree in writing that any Damages relating to such Third Party Claim constitute Damages under this Section 10, and (c) such Third Party Claim, if determined adversely to Purchaser Indemniteedetermined, would not otherwise be likely reasonably expected to result Materially Adversely Affect the Parent or any of its Representatives. Notwithstanding the Shareholders’ election to assume the defense, appeal or settlement of a Third Party Claim, the Indemnitees shall have the right to employ separate counsel and to participate in injunctions, equitable remedies the defense or reputational damage in respect investigation of such Purchaser IndemniteeThird Party Claim at their own cost and expense. The Company and the Parent and Indemnitees shall reasonably cooperate in any such defense, appeal or settlement proceedings, and give each other reasonable access to all information relevant thereto, subject to the relevant Parties entering into a confidentiality agreement with respect to such information containing customary confidentiality obligations and use restrictions. If the Sellers’ Representative proceeds with Shareholders are not entitled, or do not timely elect, to assume and control the defense defense, appeal or settlement of any such Third a Third-Party Claim:
(i) i. subject to the other provisions of this Article XSection 10, all reasonable expenses relating to the defense of such Third Party Claim (and all amounts due pursuant to any settlement, adjustment or compromise of such Third Party Claim) shall be borne and paid exclusively by the applicable indemnifying Seller; andShareholders (subject to Section 10.2(b));
(ii) if . the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee Shareholders shall make available to the Sellers’ Representative Parent any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claimclaim or Legal Proceeding; and
iii. If the Purchaser proceeds with the defense of any such Third Party ClaimParent, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative Indemnitees or the Purchaser Indemnitee, relevant affiliate thereof (as the case may be, ) shall control the conduct of the Third Party Claim but shall not have the right to settle, adjust or compromise and settle any indemnifiable matters related to such Third Party Claims Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, Shareholders (such consent not to be unreasonably withheld, withheld or delayed, or conditioned).
(db) If the Sellers’ Representative The Shareholders may not settle, adjust or compromise any Third Party Claim regarding which it assumes the defense defense, appeal or settlement without the prior written consent of the Parent (such third party claim in accordance with this Section 10.6consent not to be unreasonably withheld or delayed). If an Indemnitee requests that the Shareholders, the applicable Purchaser Indemnitee shall have the rightconsent to a settlement, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense adjustment or compromise of any Third Party Claim in accordance with this Section 10.6which the requested party or any Affiliate thereof conducts the defense, appeal or settlement, the Purchaser Indemnitee requested party shall notnot unreasonably withhold or delay such consent. The Parties shall act in good faith in responding to, so long as the Sellers’ Representative does not abandon the defense thereofdefending against, settling or otherwise dealing with all Third Party Claims.
(c) Parent and Indemnitees shall be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred rely on decisions made in writing by the Purchaser Indemnitee Shareholders’ Representative, as being made in connection with the defense thereofname of all of the Shareholders.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Sources: Merger Agreement (Orgenesis Inc.)
Defense of Third Party Claims. Any Third-Party Claim shall be subject to the following procedures:
(a) In the event of the assertion or commencement Defense by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser or any other Person) with respect to which the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other actionIndemnitor. Notwithstanding the foregoing, the Sellers’ Representative shall not Indemnitor will have the right to assume the defense of such Third Third-Party Claim if such Third Party Claim, if determined adversely to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect at its sole cost and expense with reputable legal counsel of its choosing by delivering written notice of such Purchaser Indemnitee. If the Sellers’ Representative proceeds with the defense of any such Third Party Claim:
(i) subject election to the other provisions Indemnified Person within fifteen (15) Business Days after receipt of this Article X, all reasonable expenses relating to the defense Notice of Claim describing such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Third-Party Claim. If the Purchaser proceeds with Indemnitor assumes the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Third-Party Claim in accordance with this Section 10.6subsection (a), then:
(i) Indemnitor shall keep the Purchaser Indemnitee Indemnified Person informed of all material developments relating to such Third-Party Claim. The Indemnified Person shall have the rightright to receive copies of all pleadings, but not notices and communications with respect to such Third-Party Claim to the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result extent that receipt of such Proceeding or the compromise or settlement thereofdocuments does not waive any privilege.
(cii) The Sellers’ Representative Indemnified Person may retain separate co-counsel and participate in the defense of such Third-Party Claim or the Purchaser Indemniteesettlement negotiations with respect to such Third-Party Claim at its own cost and expense, as the case may be, but shall not be entitled to determine or conduct the defense of such Third-Party Claim or settlement negotiations with respect to such Third-Party Claim.
(iii) Indemnitor shall not consent to the entry of any judgment or enter into any settlement or compromise and settle any indemnifiable matters related to Third of such Third-Party Claims Claim without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such Indemnified Person (which consent shall not to be unreasonably withheld, conditioned or delayed), unless (1) such judgment, settlement or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller compromise includes an unconditional release from all liability with respect to the particular matterclaim in favor of the Indemnified Person or (2) the sole relief provided in connection with such judgment, settlement or compromise is monetary damages that are paid in full by Indemnitor or any other relief that is enforceable only against Indemnitor.
(eiv) If The insurer under the Sellers’ Representative undertakes R&W Policy and its agents and advisors shall be permitted to associate effectively with the parties hereto in the defense of any Third Party Claim matter which might reasonably constitute a Loss (as defined in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereofR&W Policy).
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
Appears in 1 contract
Defense of Third Party Claims. (a) In the event of the assertion any claim, action, suit or commencement proceeding is made or brought by any Person, other than a third party hereto, of any claim or Proceeding (whether against the CompanyCompany or a Purchaser, Purchaser or if any other Person) governmental enforcement agency shall propose to issue an order, with respect to which Sellers may have liability under this Agreement, the Sellers may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X (a “Third Party Claim”), if the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representative, at its election, shall be entitled to defendparticipate in, contest or otherwise protect against any and, to the extent that they shall wish, to assume the defense thereof, with independent counsel reasonably satisfactory to such Proceeding at indemnified party. If the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right Sellers elect to assume the defense of any such Third Party Claim third-party claim, the Sellers shall have the right to contest, pay, settle or compromise any such claim on such terms and conditions as they may determine, provided that the Sellers shall not pay, settle or compromise any such claim without the prior written consent of the Purchasers if the terms of any such Third Party Claimsettlement impose any liability on the Company, if determined adversely Purchasers or Sykes, or could be reasonably interpreted to Purchaser Indemniteeimpugn the business reputation of the Company, would be likely to result in injunctions, equitable remedies Purchasers or reputational damage in respect of such Purchaser IndemniteeSykes. If the Sellers’ Representative proceeds with Sellers do not elect to assume the defense of any such Third Party Claim:
(i) subject claim, the Purchasers may engage counsel to the other provisions of this Article X, all reasonable expenses relating to assume the defense and may contest, pay, settle or compromise any such claim on such terms and conditions as the Purchasers may determine, provided that the Purchasers shall not pay, settle or compromise any such claim without the prior consent of such Third Party Claim shall be borne and paid exclusively by the applicable indemnifying Seller; and
Sellers or their agent (iias provided for below) if the Sellers’ Representative proceeds with the defense terms of any such Third Party Claimsettlement impose any liability on the Seller, Purchaser or could be reasonably interpreted to impugn the business reputation of the Seller. The fees and disbursements of such counsel shall be among the expenses for which Purchasers are indemnified pursuant to Section 9 hereof. Purchasers and the Purchaser Indemnitee shall make available to the Sellers’ Representative any documents and materials in their possession or control, reasonably requested by the Sellers’ Representative, that may be necessary to the defense of such Third Party Claim. If the Purchaser proceeds with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available to Purchaser any documents and materials in their possession or control, reasonably requested by Purchaser, that may be necessary to the defense of such Third Party Claim.
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, (as the case other may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(dreasonably request) If keep the Sellers’ Representative assumes the defense other fully informed of such third claim, action, suit or proceeding at all stages thereof whether or not such party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at is represented by its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular mattercounsel.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person, other than a party hereto, of any claim or Proceeding (whether against the Company, Purchaser Buyer or any other Person) with respect to which the Sellers Seller or any Stockholder may become obligated to hold harmless, indemnify, compensate or reimburse any Purchaser Indemnitee pursuant to this Article X ARTICLE 6 (a “Third Party Claim”), if Buyer shall have the Sellers’ Representative agrees that the applicable Seller shall indemnify such Purchaser Indemnitee for and against any Damages resulting from such underlying claim, then the Sellers’ Representativeright, at its election, shall be entitled to defend, contest or otherwise protect against any such Proceeding at the expense of the applicable Seller, and the Purchaser and the Purchaser Indemnitee must cooperate in any such defense or other action. Notwithstanding the foregoing, the Sellers’ Representative shall not have the right to assume proceed with the defense of such Third Party Claim if such Third Party Claim, if determined adversely on its own with counsel reasonably satisfactory to Purchaser Indemnitee, would be likely to result in injunctions, equitable remedies or reputational damage in respect of such Purchaser IndemniteeSeller. If the Sellers’ Representative Buyer so proceeds with the defense of any such Third Party Claim:
(i) subject to the other provisions of this Article XARTICLE 6, all reasonable expenses relating to the defense of such Third Party Claim shall be borne and paid exclusively jointly and severally by Seller and the applicable indemnifying Seller; andStockholders;
(ii) if the Sellers’ Representative proceeds with the defense of any such Third Party Claim, Purchaser Seller and the Purchaser Indemnitee Stockholders shall make available to the Sellers’ Representative Buyer any documents and materials in their his, her or its and in Seller’s or the Stockholders possession or control, reasonably requested by the Sellers’ Representative, control that may be necessary to the defense of such Third Party Claim. ; and
(iii) Buyer may not settle, adjust or compromise such Third Party Claim without the consent of Seller (it being understood that if Buyer requests that Seller consent to a settlement, adjustment or compromise, Seller shall not unreasonably withhold or delay such consent).
(b) If the Purchaser proceeds Buyer does not elect or is not entitled to proceed with the defense of any such Third Party Claim, the applicable indemnifying Seller shall make available proceed with the defense of such Third Party Claim with counsel reasonably satisfactory to Purchaser any documents and materials in their possession or controlBuyer; provided, reasonably requested by Purchaserhowever, that Seller may not settle, adjust or compromise any such Third Party Claim without the prior written consent of Buyer (which consent may not be necessary unreasonably withheld or delayed). Buyer shall give Seller prompt notice of the commencement of any such Third Party Claim against any Indemnitee; provided, however, that any failure on the part of Buyer to so notify Seller shall not limit any of the obligations of Seller or any Stockholder under this ARTICLE 6 (except to the extent such failure materially prejudices the defense of such Third Party Claim).
(b) In the event the Sellers’ Representative does not assume the defense of such Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall have the right, but not the obligation, thereafter to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the applicable indemnifying Seller, including reasonable attorneys’ fees, disbursements and all amounts paid as a result of such Proceeding or the compromise or settlement thereof.
(c) The Sellers’ Representative or the Purchaser Indemnitee, as the case may be, shall not compromise and settle any indemnifiable matters related to Third Party Claims without the prior written consent of the Sellers’ Representative or the applicable Purchaser Indemnitee, as the case may be, such consent not to be unreasonably withheld, delayed, or conditioned.
(d) If the Sellers’ Representative assumes the defense of such third party claim in accordance with this Section 10.6, the applicable Purchaser Indemnitee shall have the right, but not the obligation, to participate at its own expense in defense thereof by counsel of its own choosing, but the Sellers’ Representative shall be entitled to control the defense unless the Purchaser Indemnitee has relieved the applicable indemnifying Seller from liability with respect to the particular matter.
(e) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative does not abandon the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
(f) If the Sellers’ Representative undertakes the defense of any Third Party Claim in accordance with this Section 10.6, the Purchaser Indemnitee shall not, so long as the Sellers’ Representative zealously pursues the defense thereof, be entitled to recover from the applicable indemnifying Seller, any legal or other expenses subsequently incurred by the Purchaser Indemnitee in connection with the defense thereof.
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