Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representative. If Parent so proceeds with the defense of any such claim or Legal Proceeding: (a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders; (b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and (c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 2 contracts
Sources: Merger Agreement (Nordhagen Arlen Dale), Merger Agreement (National Storage Affiliates Trust)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) third party of any claim or Legal Proceeding (whether against any Merger Sub, the Surviving Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeStockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in Section 4.2(a)(ix) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative whether the Indemnitors are obligated to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. If the Stockholders’ Agent consents to settle, adjust or compromise such claim or Legal Proceeding, such settlement, adjustment or compromise shall be conclusive evidence of whether a Parent the amount of Damages incurred by the Indemnitee is entitled to indemnification or other relief in connection with respect to damages related to such claim or Legal Proceeding (it being understood and of Indemnitees obligation to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding against Parent, any Merger Sub or the Company; provided, however, that if any failure on the part of Parent requests that to so notify the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative Stockholders’ Agent shall not unreasonably withhold or delay limit any of the obligations of the Indemnitors under Section 4 (except to the extent such consentfailure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may Stockholders’ Agent will proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Yelp Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Corporation, any Acquired Company, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to control and proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders’ Agent (and for this purpose, it is acknowledged and agreed that Weil, Gotshal & ▇▇▇▇▇▇ LLP is satisfactory to the Securityholders’ Agent), and the Securityholders’ Agent shall be entitled, at its expense (on behalf of the Effective Time Holders), to participate in, but not to determine or conduct, the defense of such third party claim and Parent shall keep the Securityholders’ Agent reasonably apprised of material developments in such Legal Proceeding, and promptly provide to the Securityholders’ Agent copies of all pleadings, notices and communications with respect to such claim or Legal Proceeding to the extent that receipt of such documents does not waive any privilege. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 9 (including the exhaustion of any available Deductible), all reasonable expenses defense costs relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersEffective Time Holders (regardless of whether the underlying claim or Legal Proceeding is indemnifiable hereunder); provided Parent’s sole and exclusive remedy for such defense costs shall be the then available Escrow Fund and any recoveries of such defense costs therefrom shall count against the liability caps in Section 9.3(c)-(d);
(b) each Securityholder Effective Time Holder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with such Effective Time Holder’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the existence or amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold or delay such consentconsent provided, that the Securityholders’ Agent may withhold consent to any requested settlement, adjustment or compromise if the Securityholders’ Agent believes in good faith that there is not any underlying basis for indemnification under this Section 9 with respect to such settlement, adjustment or compromise). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)) unless (i) such judgment, settlement or compromise includes an unconditional release from all liability with respect to the claim in favor of the Indemnitees or (ii) the sole relief provided in connection with such judgment, settlement or compromise is monetary damages that are paid in full by the Effective Time Holders (including from the Escrow Fund) or any other relief that is enforceable only against The Effective Time Holders. Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent proceeds with the defense of any such claim or Legal Proceeding as contemplated under this Section 9.5, upon the request of Parent and subject to the other provisions of this Section 9, the Securityholders’ Agent hereby agrees to instruct the Escrow Agent to pay to Parent from the Escrow Amount an amount equal to the reasonable documented defense costs of Parent relating to the defense of such claim or Legal Proceeding as such expenses are incurred by Parent (regardless of the provisions of Section 9.6 but subject to the limitations of Section 9.5(a)) on a monthly basis and subject to a reasonable advance review period for such documentation.
Appears in 2 contracts
Sources: Merger Agreement (Under Armour, Inc.), Merger Agreement (Under Armour, Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub or any of the Surviving CompanyAcquired Corporations, against Parent or against any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeShareholders' Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) : subject to the other provisions of this Article VIIISection 9, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) Indemnitors; each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) and Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeShareholders' Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Shareholders' Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Shareholders' Agent shall not unreasonably withhold or delay such consent). Parent shall give the Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or any of the Acquired Corporations; provided, however, that any failure on the part of Parent to so notify the Shareholders' Agent shall not limit any of the obligations of the Indemnitors under Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Shareholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 2 contracts
Sources: Merger Agreement (Siebel Systems Inc), Merger Agreement (Siebel Systems Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemniteea) of If any claim or Legal Proceeding liability is asserted by a third party after the Closing for which Parent believes indemnification may be sought under the terms of this Section 9 (whether against the Surviving Companya "THIRD-PARTY CLAIM"), Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, then Parent shall have promptly notify the right, at its election, to proceed with the defense Principal Selling Shareholders in writing of such claim or Legal Proceeding on its own Third-Party Claim (said notification being referred to as a "THIRD-PARTY CLAIM NOTICE"). Any Third-Party Claim Notice shall state with counsel reasonably satisfactory to reasonable specificity, in light of the Securityholder Representative. If Parent so proceeds with then current circumstances, the defense basis of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;Third-Party Claim.
(b) each Securityholder Parent shall use commercially reasonable efforts have fifteen (15) days after receipt by the Principal Selling Shareholders of such Third-Party Claim Notice to elect to undertake, conduct and control, through counsel of its own choosing, the settlement or defense thereof, and the Principal Selling Shareholders shall cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) therewith. Parent shall have the right to settlecontest, adjust settle or compromise such claim or Legal Proceedingthe Third-Party Claim in the exercise of its reasonable discretion; provided, however, that if Parent settles, adjusts shall notify the Principal Selling -------- Shareholders of any proposed compromise or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense settlement of any such claim Third-Party Claim and shall not effect such compromise or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding settlement without the prior written consent (not to be unreasonably withheld or delayed) of the Principal Selling Shareholders; provided, further, that Parent shall not, in the defense -------- ------- of such claim, consent to entry of any judgment unless the judgment provides only for the payment of monetary damages or unless Parent obtains the written consent of the Principal Selling Shareholders, or (if the Company is a party to such proceeding) consent to entry of any judgment or enter into any settlement (except with the written consent of the Principal Selling Shareholders) which does not include as an unconditional term thereof the giving by the claimant to the Company of a release from all liability in respect of such claim.
(c) If Parent elects not to undertake the defense of the Third- Party Claim, then the Principal Selling Shareholders may undertake, conduct and control, through counsel approved by Parent (which consent may such approval not to be unreasonably withheld or delayed). Parent shall give , and at its own expense, the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub settlement or the Companydefense thereof; provided, howeverthat the Principal Selling Shareholders shall not -------- compromise or settle any Third-Party Claim without Parent's prior written consent (not to be unreasonably withheld or delayed); provided, further, that any failure on -------- ------- the part of Parent to so notify the Securityholder Representative Principal Selling Shareholders shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices not, in the defense of such Legal Proceeding)claim, consent to entry of any judgment unless the judgment provides only for the payment of monetary damages or unless the Principal Selling Shareholders obtains the written consent of Parent, or consent to entry of any judgment or enter into any settlement (except with the written consent of Parent) which does not include as an unconditional term thereof the giving by the claimant to the Indemnitees of a release from all liability in respect of such claim.
Appears in 2 contracts
Sources: Merger Agreement (MJD Communications Inc), Merger Agreement (MJD Communications Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or against any other Person) with respect to which any Securityholder of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding by counsel reasonably satisfactory to the Shareholders' Agent shall be borne and paid exclusively by from the SecurityholdersHoldback Shares;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his, her or its possession or control that reasonably may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the written consent of the Shareholders' Agent (as defined in Section 11.2); provided, however, that if such consent shall not be unreasonably withheld. Parent settlesshall give the Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent or the Company; provided, adjusts or compromises however, that any failure on the part of Parent to so notify the Shareholders' Agent shall not limit any of the obligations of the Indemnitors under this Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). Parent shall conduct the defense of such claim or Legal Proceeding without diligently and in good faith using all reasonable means and defenses available to it or to the consent Company. The Shareholders' Agent shall have the right, 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 the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence defense of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding by Parent (or determinative in the case of whether a claim or Legal Proceeding against the Company, by the Company). In such event, Parent Indemnitee is entitled shall afford the Shareholders' Agent and its counsel a reasonable opportunity to indemnification or other relief comment and the right to object (which right shall not be unreasonably exercised) with respect to damages related to the conduct of the defense of such claim or Legal Proceeding. Parent shall keep the Shareholders' Agent reasonably informed of the progress of any claim or Legal Proceeding and its defense, and shall with reasonable promptness provide the Shareholders' Agent with copies of all material notices, written communications and filings (it being understood that if Parent requests that including court papers) made by or on behalf of any of the Securityholder Representative consent parties to a settlement, adjustment the underlying claim or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent)Legal Proceeding. If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Shareholders' Agent 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 or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceedingwithheld).
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Accrue Software Inc), Agreement and Plan of Merger and Reorganization (Accrue Software Inc)
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the Shareholder Representative as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) summons). The failure of any claim or Legal Proceeding (whether against the Surviving Companyindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Securityholder Representativeextent that the Employee Shareholders demonstrate they were actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(a) subject Shareholder Representative shall acknowledge in writing to the other provisions of this Article VIII, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding Employee Shareholders shall be borne and paid exclusively by obligated under the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense terms of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action, then the Employee Shareholders shall be entitled, if they so elect at their own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or determinative action, (ii) to employ and engage attorneys of whether a Parent Indemnitee is entitled their own choice to indemnification or other relief with respect to damages related handle and defend the same unless the named parties to such claim action or Legal Proceeding proceeding include both an Employee Shareholder and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the Employee Shareholder(s), in which event the indemnified Person shall be entitled, at the Employee Shareholders' cost, risk and expense, to separate counsel of its own choosing, and (it being understood that if Parent requests that the Securityholder Representative consent iii) to a settlementcompromise or settle such claim, adjustment which compromise or compromise, the Securityholder Representative settlement shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed be made only with the defense written consent of any the indemnified Person, such claim or Legal Proceeding, the Securityholder Representative may proceed consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the Employee Shareholders and their attorneys in the investigation, trial and defense of such claim lawsuit or Legal Proceeding with counsel reasonably satisfactory to Parentaction and any appeal arising therefrom; provided, however, that the Securityholder Representative may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the Employee Shareholders fail to assume the defense of such claim or Legal Proceeding without within 15 calendar days after receipt of the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of claim by the commencement Shareholder Representative, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the Shareholder Representative) have the right to undertake, at the Employee Shareholders' cost, risk and expense, the defense, compromise or settlement of any such Legal Proceeding against Parent, Merger Sub or claim on behalf of and for the Companyaccount and risk of the Employee Shareholders; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative such claim shall not limit any be compromised or settled without the written consent of the obligations of Shareholder Representative, which consent shall not be unreasonably withheld. If the Securityholders under this Article VIII (except to the extent such failure materially prejudices indemnified Person assumes the defense of the claim, the indemnified Person will keep the Shareholder Representative reasonably informed of the progress of any such Legal Proceedingdefense, compromise or settlement. The Employee Shareholders shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.2 and for any final judgment (subject to any right of appeal), and the Employee Shareholders shall indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against any of the Surviving CompanyCompanies, Parent the Purchaser or any other Person) with respect to which any Securityholder Selling Shareholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee Purchaser Indemnified Party pursuant to this Article VIIIArticle X, Parent then Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject each Selling Shareholder shall make available to the Purchaser any documents, materials and other provisions of this Article VIII, all reasonable expenses relating information in his possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;Proceeding; and
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representativerespective Shareholders Representative or specific Selling Shareholder, as applicable, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Losses incurred by the Parent Indemnitee Purchaser Indemnified Party in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent Purchaser requests that the Securityholder such Shareholders Representative or Selling Shareholder consent to a settlement, adjustment or compromise, the Securityholder Representative such consent shall not be unreasonably withhold withheld, delayed or delay conditioned; provided that withholding, delaying or conditioning such consentconsent will not be deemed to be unreasonable if such settlement, adjustment or compromise does not provide full release of the claims raised against the respective Selling Shareholders in such Proceeding). Purchaser shall give the respective Shareholders Representative or such specific Selling Shareholder, as applicable, prompt notice of the commencement of any such Proceeding against Purchaser or any of the Companies and provide information reasonably requested by such Shareholders Representative or Selling Shareholder, as applicable, and not subject to attorney-client privilege of Purchaser or the Purchaser Indemnified Parties relating to such claim; provided, however, that any failure on the part of Purchaser to so notify such Shareholders Representative or Selling Shareholder, as applicable, and provide such information shall not limit any of the obligations of the respective Selling Shareholder(s) under Article X (except to the extent such failure materially prejudices the defense of such Proceeding). If Parent Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder respective Shareholders Representative or Selling Shareholder, as applicable, may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentPurchaser; provided, however, that the Securityholder such Shareholders Representative or Selling Shareholder, as applicable, may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Purchaser (which consent may not be unreasonably withheld withheld, delayed or delayed). Parent shall give the Securityholder Representative prompt notice conditioned, provided that withholding, delaying or conditioning such consent will not be deemed to be unreasonable if such settlement, adjustment or compromise does not provide full release of the commencement of any such Legal Proceeding claims raised against Parent, Merger Sub the Purchaser or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent respective Company in such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Share Purchase Agreement (Kardan Technologies Ltd.)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder of the Non-Designated Shareholders may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Section 4:
(a) Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeselected by Parent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(ai) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by Parent) shall be borne and paid exclusively by the SecurityholdersDesignated Shareholders;
(bii) each Securityholder Non-Designated Shareholder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in his possession or control that Parent determines may be necessary or useful in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(ciii) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Shareholders' Agent (as defined in Section 6.1); provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding unreasonably withheld.
(it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). b) If Parent does not elect to proceed with the defense of such claim or Legal Proceeding on its own, it may designate the Shareholders' Agent to assume the defense of any such claim or Legal Proceeding, in which case:
(i) The Shareholders' Agent shall proceed to defend such claim or Legal Proceeding in a diligent manner with counsel satisfactory to Parent.
(ii) the Securityholder Representative may proceed with Shareholders' Agent shall keep Parent informed of all material developments and events relating to such claim or Legal Proceeding;
(iii) Parent shall have the right to participate in the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that Proceeding;
(iv) the Securityholder Representative may Shareholders' Agent shall not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent; and
(v) Parent may at any time (notwithstanding the prior designation of the Shareholders' Agent to assume the defense of such claim or Legal Proceeding) assume the defense of such claim or Legal Proceeding with counsel selected by Parent in which consent may not be unreasonably withheld or delayed). case the provisions of Section 4.8(a) shall apply.
(c) Parent shall give the Securityholder Representative Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub Parent or the CompanySurviving Corporation; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Shareholders' Agent shall not limit any of the obligations of the Securityholders Non-Designed Shareholders under this Article VIII Section 4 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate pay or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent the Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSelling Shareholders. If Parent the Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 10, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent the Purchaser any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; andand 41
(c) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent the Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSelling Shareholders, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent the Purchaser requests that the Securityholder Representative Selling Shareholders consent to a settlement, adjustment or compromise, the Securityholder Representative Selling Shareholders shall not unreasonably withhold or delay such consent). The Purchaser shall give the Selling Shareholders prompt notice of the commencement of any such Legal Proceeding against the Purchaser or any of the Acquired Companies after the Closing Date; provided, however, that any failure on the part of the Purchaser to so notify the Selling Shareholders shall not limit any of the obligations of the Indemnitors under Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent the Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Selling Shareholders may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Purchaser; provided, however, that the Securityholder Representative Selling Shareholders may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Purchaser (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Share Purchase Agreement
Defense of Third Party Claims. In the event of the assertion If any legal proceeding shall be instituted, or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding demand made, by any third party against any Indemnified Party in respect of which the Sellers may be liable hereunder (whether against the Surviving Company, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent and such determination shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory be made without regard to the Securityholder Representative. If Parent so proceeds with the defense of any limitations set forth in Section 8.6), such claim or Legal Proceeding:
(a) subject Indemnified Party shall give prompt written notice thereof to the other provisions of this Article VIIISellers and, all reasonable expenses relating to except as otherwise provided in Section 8.4 below, the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent Sellers shall have the right to settledefend, adjust or compromise cause the Company or its successors to defend, any litigation, action, suit, demand, or claim for which such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to Indemnified Party may seek indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Sellers; provided, however, that the Securityholder Representative Sellers may not settle, adjust or compromise settle any such litigation, action, suit, demand, or claim or Legal Proceeding without the prior written consent of Parent (Buyer, which consent may shall not be unreasonably withheld withheld. Notwithstanding the foregoing, if in the reasonable judgment of Buyer, (i) such litigation, action, suit, demand or delayed). Parent shall give claim, or the Securityholder Representative prompt notice resolution thereof, would have a Material Adverse Effect on Buyer or the Company in excess of the commencement $50,000 not covered as an Indemnifiable Cost or (ii) Sellers have a conflict of any interest in defending such Legal Proceeding against Parent, Merger Sub action on Buyer's or the Company; provided's behalf, howeverat Buyer's election, that Buyer may defend itself with counsel reasonably satisfactory to the Sellers, 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 Company or its successors, the Buyer may participate but at its own expense. In the event the Sellers fail or refuse to defend any failure on the part of Parent legal proceeding she is required to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders defend under this Article VIII (except within a reasonable length of time, the Indemnified Parties shall be entitled to assume the defense thereof with counsel reasonably satisfactory to the extent such failure materially prejudices Sellers, 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 do not or refuse to assume the defense of any litigation, action, suit, demand, or claim in any legal proceeding she 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 Legal Proceeding)litigation, action, suit, demand, or 28 claim, but Sellers shall be entitled, at their own expense, to participate in such litigation, action, suit, demand, or claim, and if the Sellers elect to participate in such litigation 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, or cause to be delivered to the other party, copies of all correspondence, pleadings, motions, briefs appeals or other written statements relating to or submitted in connection with the defense of any such litigation, action, suit, demand, or claim, and timely notices of any hearing or other court proceeding relating to such litigation, action, suit, demand, or claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Vacation Group Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Purchaser, Parent or any other Person) with respect to which any Securityholder Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Parent Indemnitee reimbursed pursuant to this Article VIIISection 10, Parent (a) Purchaser shall notify the Selling Shareholders’ Agent promptly after Purchaser receives written notice of such claim or Legal Proceeding (it being understood that any failure by Purchaser to so notify the Selling Shareholders’ Agent shall have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 10), and (b) Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory acceptable to the Securityholder RepresentativeSelling Shareholders’ Agent. If Parent Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
: (ai) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively from the Escrow Fund or, if such claim or Legal Proceeding relates to any matter referred to in Section 10.2(b), by the Securityholders;
Selling Shareholder or Selling Shareholders obligated to hold harmless, indemnify, compensate and reimburse such Indemnitee; (bii) the Selling Shareholders’ Agent and each Securityholder Selling Shareholder shall use commercially reasonable efforts make available to cooperate with Parent Purchaser any documents and materials that Purchaser determines in connection with good faith may be necessary to the defense of such claim or Legal Proceeding Proceeding; and (provided that no Securityholder shall be required to make any admissions against interest); and
(ciii) Parent Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSelling Shareholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent Purchaser requests that the Securityholder Representative Selling Shareholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Selling Shareholders’ Agent shall not unreasonably withhold or delay such consent). If Parent Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may Selling Shareholders’ Agent shall (at the sole expense of the Selling Shareholders or, if such claim or Legal Proceeding relates to any matter referred to in Section 10.2(b), by the Selling Shareholder or Selling Shareholders obligated to hold harmless, indemnify, compensate and reimburse such Indemnitee) proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory acceptable to ParentPurchaser; provided, however, that the Securityholder Representative Selling Shareholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Purchaser (which consent may shall not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub, any of the Surviving Company, Parent or any other Person) with respect to which any Securityholder the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10.2, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory consented to in writing by the Securityholder RepresentativeIndemnitors, which consent shall not be unreasonably withheld. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 10, all reasonable reasonable, actual and documented expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representativeboth Indemnitors, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Indemnitors consent to a settlement, adjustment or compromise, the Securityholder Representative Indemnitors shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Indemnitors prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Indemnitors shall not limit any of the obligations of the Securityholders Indemnitors under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Indemnitors may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Indemnitors may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub, the Surviving Company, Parent or any other Person) with respect to which any Securityholder of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by from the SecurityholdersEscrow Amount;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding with the consent of the Stockholders’ Agent; provided, however, that such consent shall not be unreasonably withheld or delayed. Parent shall (i) give the Stockholders’ Agent notice of the commencement of any such claim or Legal Proceeding against Parent, Merger Sub or the Company promptly after Parent becomes aware of such claims or Legal Proceeding and (ii) use reasonable efforts to notify the Stockholders’ Agent of all material developments relating to such claims or Legal Proceeding; provided, however, that if any failure on the part of Parent settles, adjusts or compromises to so notify the Stockholders’ Agent shall not limit any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence obligations of the amount Indemnitors under this Section 9 (except to the extent such failure materially prejudices the defense of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consentProceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to the Parent; provided, however, that the Securityholder Representative Stockholders’ Agent (i) will use reasonable efforts to notify Parent of all material developments relating to such claim or Legal Proceeding and (ii) may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Ipass Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) person of any claim or Legal Proceeding legal proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Personperson) with respect to which any Securityholder a Parent Affiliate may become obligated be entitled to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee payment pursuant to this Article VIII, Parent shall, within a reasonable amount of time after learning of such claim or legal proceeding, notify the Shareholder Representative of such claim or legal proceeding and shall extend to the Shareholder Representative a reasonable opportunity to defend against such claim or legal proceeding, at the shareholders' sole expense and through legal counsel reasonably acceptable to Parent, provided that the shareholders' defense of such claim or legal proceeding proceeds in good faith, expeditiously and diligently. Parent shall, at its option and expense, have the right to participate in any defense undertaken by the shareholders through the Shareholder Representative with legal counsel of its own selection. No settlement or compromise of any claim which may result in Damages or which acknowledges any liability for a violation of law, or purports to impose any non-monetary obligation on the indemnified party, may be made by the Shareholder Representative without the prior written consent of Parent, which consent will not be unreasonably withheld. In the event the Shareholder Representative does not timely tender a defense to such claim or legal proceeding or such defense does not proceed in good faith, expeditiously or diligently, then Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding legal proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceedinglegal proceeding under such circumstances:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding legal proceeding shall be borne and paid exclusively by the Securityholderssubject to claim as indemnified Damages hereunder;
(b) each Securityholder the parties shall use commercially reasonable efforts to cooperate with make available to Parent any documents and materials in connection with their possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)legal proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without legal proceeding with the written consent of the Securityholder Company Representative, such settlement, adjustment or compromise shall which consent will not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlementunreasonably withheld; PROVIDED, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, howeverHOWEVER, that the Securityholder Representative Parent may not settle, adjust nevertheless settle or compromise any such claim or Legal Proceeding legal proceeding without the Company Representative's prior written consent if the failure to so settle or compromise such claim or legal proceeding in a timely manner will, in the reasonable judgment of Parent, materially and adversely affect Parent or the Surviving Company (which consent may but such settlement or compromise shall not be unreasonably withheld prejudice the rights of any party to maintain that such settlement or delayed). Parent shall give compromise should not result in a claim for indemnification in the Securityholder Representative prompt notice amount of the commencement settlement or at all).
(d) For purposes of any such Legal Proceeding against Parentthis Article VIII, Merger Sub ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. is appointed Shareholder Representative. The Shareholder Representative shall in no event be liable to Parent or the Company; provided, however, that Surviving Corporation for any failure on action taken in good faith by the part Shareholder Representative in the scope of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)performing his role hereunder.
Appears in 1 contract
Sources: Merger Agreement (Invitrogen Corp)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the either Surviving Corporation, either Company, Parent or any other Person) with respect to which any Securityholder may become obligated Indemnitee has a right to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee indemnification pursuant to this Article VIIIX, Parent Company Stockholder shall have the right, at its his election, to proceed with the defense of such claim or Legal Proceeding on its his own with counsel reasonably satisfactory to the Securityholder RepresentativeParent. The parties agree that, without limiting Company Stockholder’s choice of counsel, it shall be reasonable for Company Stockholder to use counsel that he has used in the past. The Parent shall have the right to participate in the defense of the claim at its own expense (on behalf of the Indemnifying Parties). If Parent Company Stockholder so proceeds with the defense of any such claim or Legal Proceeding:
(a) Company Stockholder shall keep the Parent reasonably informed as to the status of and all material developments in the defense;
(b) subject to the other provisions of this Article VIIIX, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnifying Parties and not made subject to the Deductible;
(bc) each Securityholder Indemnitee shall use commercially reasonable efforts make available to cooperate with Parent Company Stockholder any documents and materials in connection with such Indemnitee Party’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding, all as reasonably determined by Parent; and
(cd) Parent Company Stockholder shall not have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeParent, such settlement, adjustment or compromise (which consent shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding delayed).
(it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). e) If Parent Company Stockholder does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Parent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentCompany Stockholder; provided, however, that the Securityholder Representative Parent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Company Stockholder (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Company Stockholder prompt notice of the commencement of any such Legal Proceeding against Parent, either Merger Sub or the either Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Company Stockholder shall not limit any of the indemnification obligations of the Securityholders under this set forth in Article VIII X (except to the extent such failure materially prejudices the defense of 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 Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder of the Shareholders may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to designate the Shareholders' Agent to assume the defense of such claim or Legal Proceeding at the sole expense of the Shareholders. If Parent so elects to designate the Shareholders' Agent to assume the defense of any such claim or Legal Proceeding:
(i) the Shareholders' Agent shall proceed to defend such claim or Legal Proceeding in a diligent manner with counsel satisfactory to Parent;
(ii) the Shareholders' Agent shall keep Parent informed of all material developments and events relating to such claim or Legal Proceeding;
(iii) Parent shall have the right to participate in the defense of such claim or Legal Proceeding;
(iv) the Shareholders' Agent shall not settle, adjust or compromise such claim or Legal Proceeding without the prior written consent of Parent; and
(v) Parent may at any time (notwithstanding the prior designation of the Shareholders' Agent to assume the defense of such claim or Legal Proceeding) assume the defense of such claim or Legal Proceeding with counsel selected by Parent. If Parent does not elect to designate the Shareholders' Agent to assume the defense of any such claim or Legal Proceeding (or if, after initially designating the Shareholders' Agent to assume such defense, Parent elects to assume such defense), Parent may proceed with the defense of such claim or Legal Proceeding on its own own, with counsel reasonably satisfactory to the Securityholder Representativeselected by Parent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(avi) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersShareholders;
(bvii) each Securityholder Shareholder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(cviii) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Shareholders' Agent; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)withheld. Parent shall give the Securityholder Representative Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub Parent or the CompanySurviving Corporation; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Shareholders' Agent shall not limit any of the obligations of the Securityholders Shareholders under this Article VIII Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
(b) In the event of the assertion or commencement by any Person of any claim or Legal Proceeding (whether against the Shareholders or against any other Person but specifically excluding any claim or Legal Proceeding brought against Parent) with respect to which Parent may become obligated to hold harmless, indemnify, compensate or reimburse any Shareholder Indemnitee pursuant to this Section 9, the Shareholders' Agent shall have the right, at his election, to designate Parent to assume the defense of such claim or Legal Proceeding at the sole expense of Parent. If the Shareholders' Agent so elects to designate Parent to assume the defense of any such claim or Legal Proceeding:
(i) Parent shall proceed to defend such claim or Legal Proceeding in a diligent manner with counsel satisfactory to the Shareholders' Agent;
(ii) Parent shall keep the Shareholders' Agent informed of all material developments and events relating to such claim or Legal Proceeding;
(iii) the Shareholders' Agent shall have the right to participate in the defense of such claim or Legal Proceeding;
(iv) Parent shall not settle, adjust or compromise such claim or Legal Proceeding without the prior written consent of the Shareholders' Agent; and
(v) the Shareholders' Agent may at any time (notwithstanding the prior designation of Parent to assume the defense of such claim or Legal Proceeding but specifically excluding any claim or Legal Proceeding brought against Parent) assume the defense of such claim or Legal Proceeding with counsel selected by the Shareholders' Agent. If the Shareholders' Agent does not elect to designate Parent to assume the defense of any such claim or Legal Proceeding (or if, after initially designating Parent Agent to assume such defense, the Shareholders' Agent elects to assume such defense), the Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding on its own, with counsel selected by the Shareholders' Agent. If the Shareholders' Agent so proceeds with the defense of any such claim or Legal Proceeding:
(vi) all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by Parent;
(vii) Parent shall make available to the Shareholders' Agent any documents and materials in its possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(viii) the Shareholders' Agent shall have the right to settle, adjust or compromise such claim or Legal Proceeding with the consent of Parent; provided, however, that such consent shall not be unreasonably withheld. The Shareholders' Agent shall give Parent prompt notice of the commencement of any such Legal Proceeding against any Shareholder; provided, however, that any failure on the part of the Shareholders' Agent to so notify Parent shall not limit any of the obligations of Parent under this Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Medibuy Com Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub or the Surviving Company, against Parent or against any other Person) with respect to which any Securityholder of the Indemnitors may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively from the Escrow Shares and/or pursuant to Parent's setoff rights set forth in Section 9.3 upon a final non-appealable order (or an order for which the appeal period has expired) or settlement agreement or agreement of any court of competent jurisdiction or arbitrators empanelled pursuant to any agreement contemplated by this Agreement or by agreement of Parent and the SecurityholdersCompany;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Shareholders' Agent (as defined in Section 10.1); provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, shall not be unreasonably withheld and such settlement, adjustment or compromise settlement shall not be conclusive evidence as to whether there has been a breach or violation by the Company of any representation or warranty, covenant or any other provision contained in this Agreement which would give rise to an indemnification obligation under this Section 9. Parent shall give the Shareholders' Agent prompt notice of the amount commencement of damages incurred by the Parent Indemnitee in connection with any such claim or Legal Proceeding against Parent, Merger Sub or determinative the Company; provided, however, any failure on the part of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that so notify the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative Shareholders' Agent shall not unreasonably withhold or delay limit any of the obligations of the Indemnitors under this Section 9 (except to the extent such consentfailure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Shareholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayedwithheld). Parent shall give Notwithstanding anything to the Securityholder Representative prompt notice of contrary contained in this Agreement, no indemnification payment need be made under this Agreement with respect to a claim or Legal Proceeding asserted or commenced by a third party against any Indemnitee until (i) a final non-appealable order (or an order for which the commencement appeal period has expired) of any such Legal Proceeding against Parentcourt of competent jurisdiction is rendered, Merger Sub (ii) a final arbitration award by arbitrators empanelled pursuant to any agreement contemplated by this Agreement is rendered, (iii) a settlement agreement is entered, or (iv) an agreement by Parent and the Company; providedCompany is reached. With respect to a claim by any Indemnitee for indemnification in situations other than those described in the preceding sentence, however, that any failure on the part of Parent to so notify procedures set forth in the Securityholder Representative Escrow Agreement and the Setoff Escrow Agreement shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)govern.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Acuson Corp)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent against any other Indemnitee or against any other Person) with respect to which any Securityholder the Company may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, the Parent and Surviving Corporation shall promptly give written notice to the Designated Agent on behalf of the Agent Committee of such claim or proceeding that might give rise to any Damages by an Indemnitee, stating the nature and basis of such claim or proceeding, and the amount thereof to the extent known. Such notice shall be accompanied by copies of all relevant documentation with respect to such claim or proceeding, including, without limitation, any summons, complaint or other pleading that may have been served, any written demand or any other document or instrument in the rightpossession of the Indemnitees. Notwithstanding the foregoing, at its electionthe failure to provide written notice as aforesaid to the Designated Agent on behalf of the Agent Committee will not relieve any Person from any liability which they may have to the Indemnitees under this Agreement or otherwise, except to the extent the Indemnitee reasonably demonstrates that such failure directly results in the loss or compromise of any rights or defenses of the Stockholders may have.
(b) The Parent and Surviving Corporation shall proceed with the defense of such claim or Legal Proceeding on its own with own, utilizing counsel of its choice and defense strategies as shall be reasonably satisfactory to determined by the Securityholder Representative. If Parent so proceeds with the defense of any such claim or Legal Proceedingand Surviving Corporation; provided that:
(ai) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne satisfied from the Escrow Fund, except to the extent that such expenses are reserved on the Final Closing Date Balance Sheet.
(ii) the Parent and paid exclusively by Surviving Corporation shall keep the SecurityholdersDesignated Agent on behalf of the Agent Committee informed of all material developments and events relating to such claim or Proceeding;
(biii) each Securityholder shall use commercially reasonable efforts to cooperate with the Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent and Surviving Corporation shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence Designated Agent on behalf of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentAgent Committee; provided, however, that the Securityholder Representative may Designated Agent shall not settleunreasonably withhold, adjust condition or compromise any delay such claim or Legal Proceeding without consent; and
(iv) at the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice request of the commencement Parent or Surviving Corporation, the Designated Agent shall use its commercially reasonable efforts, including taking any legal action reasonably necessary, to cause each of the Stockholders to deliver to the Parent and Surviving Corporation any such Legal Proceeding against Parent, Merger Sub documents and materials in the possession or the Company; provided, however, that any failure on the part control of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except Stockholders that may be necessary to the extent such failure materially prejudices the defense of such Legal claim or Proceeding).;
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder may of the Indemnitors may, in Parent's reasonable judgment, become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory own. The Merger Stockholders shall be entitled, at their expense, to the Securityholder Representativeparticipate in any defense of such claim or Legal Proceeding. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject each Indemnitor shall make available to the other provisions of this Article VIIIParent any documents and materials in his, all reasonable expenses relating her or its possession or control that may be reasonably necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(cb) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the prior written consent of the Securityholder RepresentativeStockholders' Agent (as defined in Section 10.1); PROVIDED, HOWEVER, that such settlement, adjustment or compromise consent shall not be conclusive evidence unreasonably withheld. Parent shall give the Stockholders' Agent prompt notice of the amount commencement of damages incurred by any such Legal Proceeding against Parent or the Surviving Corporation; PROVIDED, HOWEVER, that any failure on the part of Parent Indemnitee in connection with to so notify the Stockholders' Agent shall not limit any of the obligations of the Indemnitors under this Section 9 (except to the extent such claim or failure materially prejudices the defense of such Legal Proceeding or determinative the rights of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consentMerger Stockholders). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Stockholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentParent and the expense of said defense shall be paid out of the Escrow Fund; providedPROVIDED, howeverHOWEVER, that the Securityholder Representative Stockholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceedingwithheld).
Appears in 1 contract
Sources: Merger Agreement (Ditech Corp)
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person as promptly as practicable (and in any event within 15 days after the service of the assertion citation or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) summons). The failure of any claim or Legal Proceeding (whether against the Surviving Companyindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Securityholder Representativeextent that the indemnifying Person demonstrates that it was actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(a) subject indemnifying Person acknowledges in writing to the other provisions of this Article VIII, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding indemnifying Person shall be borne and paid exclusively by obligated under the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense terms of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action and demonstrates to the reasonable satisfaction of the indemnified Person the financial capacity to defend and resolve such lawsuit or determinative action, then the indemnifying Person shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of whether a Parent Indemnitee is entitled the defense and investigation of such lawsuit or action, (ii) to indemnification or other relief with respect employ and engage attorneys of its own choice to damages related handle and defend the same unless the named parties to such claim action or Legal Proceeding proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the indemnifying Person, in which event the indemnified Person shall be entitled, at the indemnifying Person’s cost, risk and expense, to separate counsel of its own choosing, and (it being understood that if Parent requests that the Securityholder Representative consent iii) to a settlementcompromise or settle such claim, adjustment which compromise or compromise, the Securityholder Representative settlement shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed be made only with the defense written consent of any the indemnified Person, such claim or Legal Proceeding, the Securityholder Representative may proceed consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person and its attorneys in the investigation, trial and defense of such claim lawsuit or Legal Proceeding with counsel reasonably satisfactory to Parentaction and any appeal arising therefrom; provided, however, that the Securityholder Representative may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to insurers. If the indemnifying Person fails to assume the defense of such claim or Legal Proceeding without within 15 days after receipt of the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of claim, the commencement indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying Person) have the right to undertake, at the indemnifying Person’s cost, risk and expense, the defense, compromise or settlement of any such Legal Proceeding against Parent, Merger Sub or claim on behalf of and for the Companyaccount and risk of the indemnifying Person; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative such claim shall not limit any be compromised or settled without the written consent of the obligations of indemnifying Person, which consent shall not be unreasonably withheld. If the Securityholders under this Article VIII (except to the extent such failure materially prejudices indemnified Person assumes the defense of the claim, the indemnified Person will keep the indemnifying Person reasonably informed of the progress of any such Legal Proceedingdefense, compromise or settlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.3 and for any final judgment (subject to any right of appeal), and the indemnifying Person agrees to indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Sources: Formation and Contribution Agreement (Tegal Corp /De/)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyEntity, HoldCo, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee has a right to indemnification pursuant to this Article VIIIX, Parent the Stockholders’ Agent shall have the right, at its his election, to proceed with the defense of such claim or Legal Proceeding on its his own with counsel reasonably satisfactory to Parent. The parties agree that, without limiting the Securityholder RepresentativeStockholders’ Agent’s choice of counsel, it shall be reasonable for the Stockholders’ Agent to use counsel that has used by the Company in the past. Parent shall have the right to participate in the defense of the claim at its own expense (on behalf of the Parent Indemnitees). If Parent the Stockholders’ Agent so proceeds with the defense of any such claim or Legal Proceeding:
(a) The Stockholders’ Agent shall keep Parent reasonably informed as to the status of and all material developments in the defense;
(b) subject to the other provisions of this Article VIIIX, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersNSC Indemnifying Parties and not made subject to the Threshold;
(bc) each Securityholder Parent Indemnitee shall use commercially reasonable efforts make available to cooperate with Parent the Stockholders’ Agent any documents and materials in connection with such indemnitee’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(cd) Parent The Stockholders’ Agent shall not have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such Parent (which consent shall not be unreasonably withheld or delayed). Any settlement, adjustment or compromise of a claim or Legal Proceeding with the written consent of Parent shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding Proceeding.
(it being understood that if Parent requests that e) If the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent Stockholders’ Agent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Parent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Stockholders’ Agent; provided, however, that the Securityholder Representative Parent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Stockholders’ Agent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Stockholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub Sub, HoldCo or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Stockholders’ Agent shall not limit any of the indemnification obligations of the Securityholders under set forth in this Article VIII X (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In If any lawsuit or enforcement ----------------------------- action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person(s) as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) summons). The failure of any claim indemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the indemnifying Person(s) demonstrate they were actually prejudiced by such failure. After such notice, if the indemnifying Person(s) shall acknowledge in writing to the indemnified Person that the indemnifying Person(s) shall be obligated under the terms of its indemnity hereunder in connection with such lawsuit or Legal Proceeding action, then the indemnifying Person(s) shall be entitled, if its so elects at its own cost, risk and expense, (whether against i) to take control of the Surviving Companydefense and investigation of such lawsuit or action, Parent (ii) to employ and engage attorneys of their own choice to handle and defend the same unless the named parties to such action or proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the indemnifying Person(s), in which event the indemnified Person shall be entitled, at the indemnifying Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified Person, such consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person(s) and its attorneys in the investigation, trial and defense of such lawsuit or action and any other Person) with respect to which any Securityholder may become obligated to hold harmlessappeal arising therefrom; provided, indemnifyhowever, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have -------- ------- that the rightindemnified Person may, at its electionown cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to proceed with insurers. If the indemnifying Person fails to assume the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory within 15 calendar days after receipt of the notice of claim, the indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the Securityholder Representative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(aindemnifying Person) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settleundertake, adjust at the indemnifying Person's cost, risk and expense, the defense, compromise or compromise settlement of such claim or Legal Proceedingon behalf of and for the account and risk of the indemnifying Person; provided, however, that if Parent settles, adjusts or compromises any such claim shall -------- ------- not be compromised or Legal Proceeding settled without the written consent of the Securityholder Representativeindemnifying Person, such settlement, adjustment or compromise which consent shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent)withheld. If Parent does not elect to proceed with the indemnified Person assumes the defense of any such claim or Legal Proceedingthe claim, the Securityholder Representative may proceed with indemnified Person will keep the defense of such claim or Legal Proceeding with counsel indemnifying Person reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice informed of the commencement progress of any such Legal Proceeding defense, compromise or settlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 12.2 and for any final judgment (subject to any right of appeal), and the indemnifying Persons agree to indemnify and hold harmless an indemnified Person from and against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense Damages by reason of such Legal Proceeding)settlement or judgment.
Appears in 1 contract
Sources: Merger Agreement (Eoexchange Inc/Ca)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, any Acquired Entity, Parent or any other Person) with respect to which Parent in good faith believes that any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10.2(a), Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 10, all reasonable expenses relating to the defense of such claim or Legal Proceeding (and all amounts due pursuant to any settlement, adjustment or compromise of such claim or Legal Proceeding) shall be borne and paid exclusively by the SecurityholdersEffective Time Holders to the extent such expenses or Damages are indemnifiable pursuant to Section 10.2(a)(ix);
(b) each Securityholder Effective Time Holder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with such Effective Time Holder’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Securityholders’ Agent; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders’ Agent, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative Proceeding. The Securityholders’ Agent shall have the right to receive copies of whether a Parent Indemnitee is entitled to indemnification or other relief all pleadings, notices and communications with respect to damages related to such claim or the Legal Proceeding (it being understood to the extent that if receipt of such documents does not affect any privilege relating to Parent requests or any Parent Indemnitee and subject to execution by the Securityholders’ Agent of Parent’s standard non-disclosure agreement to the extent that the Securityholder Representative consent to a settlementsuch materials contain confidential or proprietary information, adjustment or compromise, the Securityholder Representative which such non-disclosure agreement shall not unreasonably withhold or delay prohibit the Securityholders’ Agent from communicating any such consentinformation solely with the members of the advisory board who have been designated to act on behalf of the Effective Time Holders pursuant to an engagement letter with the Securityholders’ Agent and who have a need to know such information, provided that any such recipients are subject to confidentiality obligations with respect thereto. The Securityholders’ Agent, at the Effective Time Holders’ cost and expense, shall be entitled to participate in the defense of any such Legal Proceedings that relates to Taxes of the Acquired Companies for Pre-Closing Tax Periods if the resolution of such Legal Proceeding would reasonably be expected to materially increase the Effective Time Holders’ liability for Pre-Closing Taxes under Section 10.2(a). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, any Acquired Entity, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders’ Agent, and the Securityholders’ Agent shall be entitled, at its expense, to participate in, but not determine or conduct, the defense of such claim or Legal Proceeding and Parent shall keep the Securityholders’ Agent reasonably apprised of any material development in such Legal Proceeding, and promptly provide to the Securityholders’ Agent copies of all pleadings, notices and communications with respect to such claim or Legal Proceeding to the extent that receipt of such documents does not waive any privilege. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 10, all reasonable expenses relating to the defense of such claim or Legal Proceeding (and all amounts due pursuant to any settlement, adjustment or compromise of such claim or Legal Proceeding) shall be borne and paid exclusively by the SecurityholdersEffective Time Holders;
(b) each Securityholder Effective Time Holder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with such Effective Time Holder’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Securityholders’ Agent; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders’ Agent, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to that such claim or Legal Proceeding Damages are indemnifiable hereunder (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)) unless (i) such judgment, settlement or compromise includes an unconditional release from all liability with respect to the claim in favor of the Parent Indemnitees and (ii) the sole relief provided in connection with such judgment, settlement or compromise is monetary damages that are paid in full by the Effective Time Holders (including from the Escrow Fund) or any other relief that is enforceable only against the Effective Time Holders. Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, a Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Splunk Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder Indemnitee may become obligated be entitled to hold be held harmless, indemnifyindemnified, compensate compensated or reimburse any Parent Indemnitee reimbursed pursuant to this Article VIIISection 10, (a) Parent shall notify the Stockholders’ Representative promptly after Parent receives written notice of such claim or Legal Proceeding (it being understood that any failure by Parent to so promptly notify the Stockholders’ Representative shall have no effect on an Indemnitee’s ability to recover Damages pursuant to this Section 10, except to the extent that the defense of such claim or Legal Proceeding is materially prejudiced thereby), and (b) Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory acceptable to the Securityholder Stockholders’ Representative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
: (ai) subject to the other provisions of this Article VIII, all reasonable out-of-pocket expenses relating to the defense of such claim or Legal Proceeding shall shall, subject to Section 10.3, be borne and paid exclusively from the Escrow Fund (with Parent and the Stockholders’ 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 Escrow Fund) or, if such claim or Legal Proceeding relates to any matter referred to in Section 10.2(b) or 10.2(c), exclusively by the Securityholders;
Key Stockholder or Key Stockholders obligated to hold harmless, indemnify, compensate and reimburse such Indemnitee; (bii) the Stockholders’ Representative and each Securityholder Key Stockholder shall use commercially reasonable efforts to cooperate with make available to Parent any documents and materials that Parent determines in connection with good faith may be necessary to the defense of such claim or Legal Proceeding Proceeding; and (provided that no Securityholder shall be required to make any admissions against interest); and
(ciii) Parent shall have the right to not settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the prior written consent of the Securityholder Representative, such settlement, adjustment or compromise Stockholders’ Representative (which consent shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim unreasonably withheld or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consentdelayed). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Stockholders’ Representative may proceed with shall (at the defense sole expense of the Non-Dissenting Stockholders or, if such claim or Legal Proceeding with counsel reasonably satisfactory relates to Parent; providedany matter referred to in Section 10.2(b) or 10.2(c), however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).at
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, any Acquired Entity, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject upon Parent’s written request, each Effective Time Holder shall make available to the other provisions of this Article VIII, all reasonable expenses relating Parent any documents and materials in such Effective Time Holder’s possession or control that may reasonably be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersProceeding;
(b) each Securityholder Parent shall: (i) keep the Securityholders’ Agent reasonably informed of the status of such claim or Legal Proceeding and the defense thereof and shall use commercially consider reasonable efforts recommendations made in good faith by the Securityholders’ Agent with respect to cooperate with Parent in connection with the defense of such claim or Legal Proceeding Proceeding; and (ii) upon reasonable written request by the Securityholders’ Agent for specified pleadings, notices or material written communications, deliver to the Securityholders’ Agent, within five Business Days after the Parent Indemnitee’s receipt thereof, copies of all such materials reasonably requested, provided that no Securityholder Parent may limit such disclosure in order to preserve the attorney client privilege, work product doctrine or any other similar privilege, in each case as and to the extent applicable to such materials; provided, further, that Parent shall be required use commercially reasonable efforts to make provide such information to Securityholders’ Agent in a manner that would not adversely affect any admissions against interest)applicable privileges; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding without the consent of the Securityholders’ Agent; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders’ Agent, then such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages of, or the Effective Time Holders’ liability for, Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent)Proceeding. If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice of the commencement of any such claim or Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Autodesk Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or any other Person) with respect A Surety is entitled to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, employ at its election, to proceed with the defense of such claim or Legal Proceeding on own cost and expense separate counsel and participate at its own with counsel reasonably satisfactory to the Securityholder Representative. If Parent so proceeds with cost and expense in the defense of any such claim Proceeding for which a Beneficiary has requested or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief reimbursement of reasonable costs pursuant to this Agreement, or, at the request of that Beneficiary, shall assume the defense of the Proceeding with respect legal counsel selected by the Surety, but reasonably satisfactory to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent)Beneficiary. If Parent does not elect to proceed with a Surety assumes the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed Sureties jointly and severally shall reimburse the Beneficiaries for all costs incurred by them in connection with the Proceeding before the Sureties assumed control of the defense of such claim it, and the Beneficiaries may elect to participate in the defense of the Proceeding at their own cost with legal counsel selected by them in their sole discretion. However, any party who elects to participate at its own cost in the defense of any Proceeding for which a Beneficiary has requested, or Legal intends to request, indemnification or the advancement and reimbursement of costs under this Agreement shall cooperate, and shall cause its legal counsel to cooperate, in defending the Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without party who is responsible for controlling the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice defense of the commencement Proceeding and its legal counsel. Even if the Sureties assume the defense of any such Legal a Proceeding, a Beneficiary will be entitled to jointly control the defense, compromise, and settlement of the Proceeding against Parentat the expense of the Sureties, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit if any of the obligations following conditions or circumstances exist: (i) the Sureties have agreed to pay the fees and expenses of the Securityholders under this Article VIII Beneficiary's separate counsel; (except ii) a court having jurisdiction rules that the Sureties have failed or are failing to defend the extent such failure materially prejudices Proceeding, in which case the Beneficiary will be entitled to assume control of the defense of such Legal the Proceeding and the Sureties shall pay the reasonable fees and expenses of the separate counsel employed by the Beneficiary for that purpose; or (iii) a Beneficiary reasonably determines based on the advice of outside counsel that having common counsel with the Sureties would present an actual conflict of interest under applicable principles of legal ethics, in which case the Beneficiary may employ separate counsel to represent or defend it in the Proceeding, and the Sureties shall pay the reasonable fees and expenses of not more than one separate counsel in addition to local counsel for the Beneficiary in connection with any single Proceeding or separate but related or similar Proceeding involving claims arising out of the same general allegations or circumstances. If a Beneficiary employs separate counsel and participates in a Proceeding for which the Surety has assumed the defense, the Beneficiary shall cooperate and shall cause its legal counsel to cooperate, with the Surety and its legal counsel in the defense of the Proceeding assumed by the Surety. If the Surety does not assume the defense of a Proceeding for which a Beneficiary has requested indemnification, or if the Surety is otherwise obligated to pay the fees and costs of any separate counsel employed by a Beneficiary to defend or represent it in a Proceeding, each Beneficiary who is entitled to employ separate counsel to defend or represent it in the Proceeding at the expense of the Surety shall obtain the Surety's advance written approval of the legal counsel to be engaged by the Beneficiary to defend or represent it in the Proceeding (which the Surety shall not unreasonably delay or withhold).
Appears in 1 contract
Sources: Settlement and Stock Redemption Agreement (Sailtech International Inc)
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person(s) as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) summons). The failure of any claim or Legal Proceeding (whether against the Surviving Companyindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Securityholder Representativeextent that the indemnifying Person(s) demonstrate they were actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(aindemnifying Person(s) subject shall acknowledge in writing to the other provisions of this Article VIII, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding indemnifying Person(s) shall be borne and paid exclusively by obligated under the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense terms of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action, then the indemnifying Person(s) shall be entitled, if its so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or determinative action, (ii) to employ and engage attorneys of whether a Parent Indemnitee is entitled their own choice to indemnification or other relief with respect to damages related handle and defend the same unless the named parties to such claim action or Legal Proceeding proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the indemnifying Person(s), in which event the indemnified Person shall be entitled, at the indemnifying Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and (it being understood that if Parent requests that the Securityholder Representative consent iii) to a settlementcompromise or settle such claim, adjustment which compromise or compromise, the Securityholder Representative settlement shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed be made only with the defense written consent of any the indemnified Person, such claim or Legal Proceeding, the Securityholder Representative may proceed consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person(s) and its attorneys in the investigation, trial and defense of such claim lawsuit or Legal Proceeding with counsel reasonably satisfactory to Parentaction and any appeal arising therefrom; provided, however, that the Securityholder Representative may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the indemnifying Person fails to assume the defense of such claim or Legal Proceeding without within 15 calendar days after receipt of the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of claim, the commencement indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying Person) have the right to undertake, at the indemnifying Person's cost, risk and expense, the defense, compromise or settlement of any such Legal Proceeding against Parent, Merger Sub or claim on behalf of and for the Companyaccount and risk of the indemnifying Person; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative such claim shall not limit any be compromised or settled without the written consent of the obligations of indemnifying Person, which consent shall not be unreasonably withheld. If the Securityholders under this Article VIII (except to the extent such failure materially prejudices indemnified Person assumes the defense of the claim, the indemnified Person will keep the indemnifying Person reasonably informed of the progress of any such Legal Proceedingdefense, compromise or settlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 7.2 and for any final judgment (subject to any right of appeal), and the indemnifying Persons agree to indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Sources: Merger Agreement (Icoa Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against any of the Surviving CompanyCompanies, Parent the Purchaser or any other Person) with respect to which any Securityholder Selling Shareholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee Purchaser Indemnified Party pursuant to this Article VIIIX, Parent then Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject each Selling Shareholder shall make available to the Purchaser any documents, materials and other provisions of this Article VIII, all reasonable expenses relating information in his possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;Proceeding; and
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representativerespective Shareholders Representative or specific Selling Shareholder, as applicable, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Losses incurred by the Parent Indemnitee Purchaser Indemnified Party in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent Purchaser requests that the Securityholder such Shareholders Representative or Selling Shareholder consent to a settlement, adjustment or compromise, the Securityholder Representative such consent shall not be unreasonably withhold withheld, delayed or delay conditioned; provided that withholding, delaying or conditioning such consentconsent will not be deemed to be unreasonable if such settlement, adjustment or compromise does not provide full release of the claims raised against the respective Selling Shareholders in such Proceeding). Purchaser shall give the respective Shareholders Representative or such specific Selling Shareholder, as applicable, prompt notice of the commencement of any such Proceeding against Purchaser or any of the Companies and provide information reasonably requested by such Shareholders Representative or Selling Shareholder, as applicable, and not subject to attorney-client privilege of Purchaser or the Purchaser Indemnified Parties relating to such claim; provided, however, that any failure on the part of Purchaser to so notify such Shareholders Representative or Selling Shareholder, as applicable, and provide such information shall not limit any of the obligations of the respective Selling Shareholder(s) under Article X (except to the extent such failure materially prejudices the defense of such Proceeding). If Parent Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder respective Shareholders Representative or Selling Shareholder, as applicable, may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentPurchaser; provided, however, that the Securityholder such Shareholders Representative or Selling Shareholder, as applicable, may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Purchaser (which consent may not be unreasonably withheld withheld, delayed or delayedconditioned, provided that withholding, delaying or conditioning such consent will not be deemed to be unreasonable if such settlement, adjustment or compromise does not provide full release of the claims raised against the Purchaser or the respective Company in such Proceeding). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).Execution Copy
Appears in 1 contract
Sources: Share Purchase Agreement (Sapiens International Corp N V)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub or the Surviving Company, against Parent or against any other Person) with respect to which any Securityholder may of the Indemnitors may, in Parent's reasonable judgment, become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory own. The Merger Shareholders shall be entitled, at their expense, to the Securityholder Representativeparticipate in any defense of such claim or Legal Proceeding. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject each Indemnitor shall make available to the other provisions of this Article VIII, all reasonable expenses relating Parent any documents and materials in his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(cb) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding only with the consent of the Shareholders' Agent (as defined in Section 10.1); provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence unreasonably withheld. Parent shall give the Shareholders' Agent prompt notice of the amount commencement of damages incurred by the Parent Indemnitee in connection with any such claim or Legal Proceeding against Parent, Merger Sub or determinative the Company; provided, however, any failure on the part of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that so notify the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative Shareholders' Agent shall not unreasonably withhold or delay limit any of the obligations of the Indemnitors under this Section 9 (except to the extent such consentfailure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Shareholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceedingwithheld).
Appears in 1 contract
Sources: Merger Agreement (Ebay Inc)
Defense of Third Party Claims. (a) In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub, any of the Surviving Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10.2, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:Stockholders’ Agent.
(ab) subject Each Indemnitor shall make available to the other provisions of this Article VIII, all reasonable expenses relating Parent any documents and materials in his possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); andProceeding.
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Stockholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Stockholders’ Agent shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent .
(which consent may not be unreasonably withheld or delayed). d) Parent shall give the Securityholder Representative Stockholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Stockholders’ Agent shall not limit any of the obligations of the Securityholders Indemnitors under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's ’s Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Securityholders consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative Securityholders prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate pay or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent the Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSelling Shareholders. If Parent the Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 10, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent the Purchaser any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent the Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent the Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSelling Shareholders, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent the Purchaser requests that the Securityholder Representative Selling Shareholders consent to a settlement, adjustment or compromise, the Securityholder Representative Selling Shareholders shall not unreasonably withhold or delay such consent). The Purchaser shall give the Selling Shareholders prompt notice of the commencement of any such Legal Proceeding against the Purchaser or any of the Acquired Companies after the Closing Date; provided, however, that any failure on the part of the Purchaser to so notify the Selling Shareholders shall not limit any of the obligations of the Indemnitors under Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent the Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Selling Shareholders may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parentthe Purchaser; provided, however, that the Securityholder Representative Selling Shareholders may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent the Purchaser (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Share Purchase Agreement (Applied Materials Inc /De)
Defense of Third Party Claims. In For a period of two years from the date of this Agreement, in the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyPeopleNet International Corporation, Parent against any other Indemnitee or against any other Person) with respect to which any Securityholder of the Significant Shareholders or ECG may become obligated to indemnify, hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 4, Parent PeopleNet International Corporation shall have the right, at its election, to require the Significant Shareholders to assume the defense of such claim or Proceeding at the sole expense of the Significant Shareholders and ECG. If PeopleNet International Corporation so elects to require the Significant Shareholders to assume the defense of any such claim or Proceeding:
(a) the Significant Shareholders shall proceed to defend such claim or Proceeding in a diligent manner with counsel satisfactory to PeopleNet International Corporation;
(b) PeopleNet International Corporation shall make available to the Significant Shareholders any non-privileged documents and materials in the possession of PeopleNet International Corporation that may be necessary to the defense of such claim or Proceeding;
(c) the Significant Shareholders shall keep PeopleNet International Corporation informed of all material developments and events relating to such claim or Proceeding;
(d) PeopleNet International Corporation shall have the right to participate in the defense of such claim or Proceeding;
(e) the Significant Shareholders shall not settle, adjust or compromise such claim or Proceeding without the prior written consent of PeopleNet International Corporation; and
(f) PeopleNet International Corporation may at any time (notwithstanding the prior designation of the Significant Shareholders to assume the defense of such claim or Proceeding) elect to assume the defense of such claim or Proceeding. If PeopleNet International Corporation does not require the Significant Shareholders to assume the defense of any such claim or Proceeding (or if, after initially requiring the Significant Shareholders to assume such defense, PeopleNet International Corporation elects to assume such defense), PeopleNet International Corporation may proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent PeopleNet International Corporation so proceeds with the defense of any such claim or Legal ProceedingProceeding on its own:
(ai) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by PeopleNet International Corporation) shall be borne and paid exclusively by the SecurityholdersSignificant Shareholders and ECG;
(bii) each Securityholder the Significant Shareholders and ECG shall use commercially reasonable efforts make available to cooperate with Parent PeopleNet International Corporation any documents and materials in connection with the possession or control of either of the Significant Shareholders or ECG that may be necessary to the defense of such claim or Legal Proceeding Proceeding;
(provided that no Securityholder iii) PeopleNet International Corporation shall be required keep the Significant Shareholders informed of all material developments and events relating to make any admissions against interest)such claim or Proceeding; and
(civ) Parent PeopleNet International Corporation shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)Significant Shareholders.
Appears in 1 contract
Sources: Sale of Assets Agreement (Peoplenet International Corp)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Corporation, any Acquired Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of limitations contained in this Article VIIISection 9, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents or other materials in connection with such Indemnitor’s possession or control or in the control of any of such Indemnitor’s Representatives that may be necessary or otherwise relevant to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeSecurityholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold withhold, condition or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding at the expense of the Indemnitors with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld withheld, conditioned or delayed). Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the CompanyCompany with respect to which Parent intends to demand indemnification from the Indemnitors; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Indemnitors under this Article VIII Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyParent, against Parent or against any other Person) with respect to which any Securityholder Indemnitee may become obligated be entitled to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee make a claim pursuant to this Article VIIISection 9, Parent shall will notify the Designated Company Agent of such assertion or commencement promptly after receiving notice thereof. The failure to give or delay in giving such notice will not reduce the amount of any such claim, except to the extent of any prejudice resulting from such failure or delay. The Escrow Stockholders, acting through the Designated Company Agent, will defend the Indemnitees in such action with counsel selected by the Designated Company Agent and reasonably satisfactory to Parent.
(a) If the Designated Company Agent so proceeds with the defense of any such claim or Legal Proceeding:
(i) The Designated Company Agent may obtain reimbursement for all reasonable expenses relating to the defense of such claim or Legal Proceeding as provided in the Escrow Agreement;
(ii) Parent will make available to the Designated Company Agent any documents and materials in its possession or control that may be necessary to the defense of such claim or Legal Proceeding; and
(iii) The Designated Company Agent will have the rightright to settle, at its electionadjust or compromise such claim or Legal Proceeding with the consent of Parent; provided, however, that such consent will not be unreasonably withheld.
(b) To the extent that the Designated Company Agent fails to provide such defense in a timely manner, Parent will have the right to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeselected by Parent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(ai) subject to the other provisions of this Article VIII, all All reasonable expenses relating to the defense of such claim or Legal Proceeding shall will be borne and paid exclusively by the Securityholdersindemnifiable under Section 9.2;
(bii) each Securityholder shall use commercially reasonable efforts The Designated Company Agent defined below will make available to cooperate with Parent any documents and materials in connection with his or her possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(ciii) Parent shall will have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Designated Company Agent; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may will not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)withheld.
Appears in 1 contract
Sources: Merger Agreement (Quokka Sports Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company Parent or any other Parent Indemniteeof its Affiliates) of any claim or Legal Proceeding (whether against the Surviving Corporation, the Company, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Section 10 (a “Third Party Claim”) Parent shall have the right, in its sole discretion and at its election, to proceed with and control the defense of such claim or Legal Proceeding Third Party Claim on its own with counsel reasonably satisfactory to the Securityholder Representativecounsel. If Parent so proceeds with the defense of any such claim or Legal ProceedingThird Party Claim:
(a) subject The Securityholders’ Agent and each Effective Time Holder shall make available to the other provisions of this Article VIII, all reasonable expenses relating Parent any documents and materials in its possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;Third Party Claim.
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right in its sole discretion to settle, adjust adjust, resolve or compromise such claim or Legal ProceedingThird Party Claim without the consent of the Securityholders’ Agent; provided, however, that if Parent settlesno settlement, adjusts adjustment, resolution or compromises any such claim or Legal Proceeding without the consent compromise of a Third Party Claim shall be determinative of the Securityholder Representative, such settlement, adjustment existence or compromise shall not be conclusive evidence of the amount of damages any Damages incurred by the Parent Indemnitee in connection with such claim Third Party Claim or Legal Proceeding or determinative of whether a the Parent Indemnitee is entitled to indemnification or other relief pursuant to this Agreement in connection with respect to damages related such Third Party Claim unless the Securityholders’ Agent has consented in writing to such claim settlement or Legal Proceeding resolution (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold withhold, condition or delay such consent). With respect to each such Third Party Claim that Parent is defending, Parent shall make available to the Securityholders’ Agent copies of complaints, pleadings, material notices and material third party communications, subject to execution by the Securityholders’ Agent of Parent’s standard form of nondisclosure agreement, and Parent shall keep the Securityholders’ Agent reasonably informed with respect to all material developments related to such Third Party Claim; provided, however, Parent 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 from sharing such information with the Securityholders’ Agent; or (3) with respect to any claim or Legal Proceeding with a Governmental Body only, Parent reasonably determines that any of such information should remain confidential and should not be provided to the Securityholders’ Agent.
(c) If Parent does not elect to proceed with the defense of any such claim or Legal ProceedingThird Party Claim, the Securityholder Representative Securityholders’ Agent may proceed with and control the defense of such claim or Legal Proceeding Third Party Claim with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding Third Party Claim without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). .
(d) Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice after discovery thereof of the commencement of any such Legal Proceeding Third Party Claim against Parent, Merger Sub Sub, the Company or the Companyany other Parent Indemnitee; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal ProceedingThird Party Claim).
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company Parent or any other Parent Indemniteeof its Affiliates) of any claim or Legal Proceeding (whether against the Surviving Corporation, the Surviving LLC, the Company, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10 (a “Third Party Claim”), Parent shall have the right, in its sole discretion and at its election, to proceed with and control the defense of such claim or Legal Proceeding Third Party Claim on its own with counsel reasonably satisfactory to the Securityholder Representativecounsel. If Parent so proceeds with the defense of any such claim or Legal ProceedingThird Party Claim:
(a) subject The Securityholders’ Agent and each Effective Time Holder shall make available to the other provisions of this Article VIII, all reasonable expenses relating Parent any documents and materials in its possession or control that may be necessary to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;Third Party Claim.
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right in its sole discretion to settle, adjust adjust, resolve or compromise such claim or Legal ProceedingThird Party Claim without the consent of the Securityholders’ Agent; provided, however, that if Parent settlesno settlement, adjusts adjustment, resolution or compromises any such claim or Legal Proceeding without the consent compromise of a Third Party Claim shall be determinative of the Securityholder Representative, such settlement, adjustment existence or compromise shall not be conclusive evidence of the amount of damages any Damages incurred by the Parent Indemnitee in connection with such claim Third Party Claim or Legal Proceeding or determinative of whether a the Parent Indemnitee is entitled to indemnification or other relief pursuant to this Agreement in connection with respect to damages related such Third Party Claim unless the Securityholders’ Agent has consented in writing to such claim settlement or Legal Proceeding resolution (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold withhold, condition or delay such consent). With respect to each such Third Party Claim that Parent is defending, Parent shall make available to the Securityholders’ Agent copies of complaints, pleadings, material notices and material third party communications, subject to execution by the Securityholders’ Agent of Parent’s standard form of nondisclosure agreement, and Parent shall keep the Securityholders’ Agent reasonably informed with respect to all material developments related to such Third Party Claim; provided, however, Parent 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 from sharing such information with the Securityholders’ Agent; or (3) with respect to any claim or Legal Proceeding with a Governmental Body only, Parent reasonably determines that any of such information should remain confidential and should not be provided to the Securityholders’ Agent.
(c) If Parent does not elect to proceed with the defense of any such claim or Legal ProceedingThird Party Claim, the Securityholder Representative Securityholders’ Agent may proceed with and control the defense of such claim or Legal Proceeding Third Party Claim with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding Third Party Claim without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). .
(d) Parent shall give the Securityholder Representative Securityholders’ Agent prompt notice after discovery thereof of the commencement of any such Legal Proceeding Third Party Claim against Parent, Merger Sub Sub, the Company or the Companyany other Parent Indemnitee; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Securityholders’ Agent shall not limit any of the obligations of the Securityholders Effective Time Holders under this Article VIII Section 10 (except to the extent such failure materially prejudices the defense of such Legal ProceedingThird Party Claim).
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, Parent or any other Person) with respect to which any Securityholder Effective Time Holder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeStockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 9, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersDamages for purposes of this Section 9;
(b) each Securityholder Effective Time Holder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with such Effective Time Holder’s possession or control that may be reasonably necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); andProceeding;
(c) Parent shall keep the Stockholders’ Agent reasonably apprised of the material developments in such claim or Legal Proceeding as they occur; Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange act of 1934, as amended.
(d) Parent shall have the right to settle, adjust or compromise such a claim or Legal ProceedingProceeding related to Company IP; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of of, or be relevant to the amount of damages determination of: (A) whether any Damages suffered or incurred by the Parent an Indemnitee in connection with such claim or Legal Proceeding are the valid subject of a claim for recovery under Section 9.2; or determinative (B) the amount of whether a Parent any Damages that would have been suffered or incurred by the Indemnitee is entitled to indemnification or other relief in connection with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that in the Securityholder Representative consent to a absence of such settlement, adjustment or compromisecompromise of such claim or Legal Proceeding; and
(e) Parent shall have the right to settle, adjust or compromise any claim or Legal Proceeding that is not subject to clause “(d)” of this sentence (including, for greater clarity, any claim or Legal Proceeding related to the Securityholder Representative Company’s infringement, misappropriation or other violation or unlawful use of any Intellectual Property of any other Person, unless such claim or Legal Proceeding also involves claims that are related to Company IP); provided, however, that Parent shall not settle, adjust or compromise any such claim or Legal Proceeding without the consent of the Stockholders’ Agent (which consent may not be unreasonably withhold withheld, delayed or delay conditioned). Parent shall give the Stockholders’ Agent prompt notice of the commencement of any such consentLegal Proceeding against Parent or the Surviving Corporation; provided, however, that any failure on the part of Parent to so notify the Stockholders’ Agent shall not limit any of the obligations of the Effective Time Holders under Section 9 (except to the extent such failure materially prejudices the Stockholders’ Agent’s rights hereunder). If Parent does not elect to proceed with the defense defense, settlement, adjustment or compromise of any such claim or Legal Proceeding, the Securityholder Representative Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Onyx Pharmaceuticals Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder of the Designated Shareholders may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Section 7:
(a) Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeselected by Parent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(ai) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding (whether or not incurred by Parent) shall be borne and paid exclusively by the SecurityholdersDesignated Shareholders;
(bii) each Securityholder Designated Shareholder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in his possession or control that Parent determines may be necessary or useful in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(ciii) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Shareholders' Agent (as defined in Section 8.1); provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding unreasonably withheld.
(it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). b) If Parent does not elect to proceed with the defense of such claim or Legal Proceeding on its own, it may designate the Shareholders' Agent to assume the defense of any such claim or Legal Proceeding, in which case:
(i) the Securityholder Representative may Shareholders' Agent shall proceed to defend such claim or Legal Proceeding in a diligent manner with counsel satisfactory to Parent.
(ii) the Shareholders' Agent shall keep Parent informed of all material developments and events relating to such claim or Legal Proceeding;
(iii) Parent shall have the right to participate in the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that Proceeding;
(iv) the Securityholder Representative may Shareholders' Agent shall not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent; and
(v) Parent may at any time (notwithstanding the prior designation of the Shareholders' Agent to assume the defense of such claim or Legal Proceeding) assume the defense of such claim or Legal Proceeding with counsel selected by Parent in which consent may not be unreasonably withheld or delayed). case the provisions of Section 7.7(a) shall apply.
(c) Parent shall give the Securityholder Representative Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub Parent or the CompanySurviving Corporation; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Shareholders' Agent shall not limit any of the obligations of the Securityholders Designed Shareholders under this Article VIII Section 7 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Clarent Corp/Ca)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Corporation, the Company, Parent or any other Person) with respect to which any Securityholder may become obligated Indemnitee has a right to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee indemnification pursuant to this Article VIIIX, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeStockholders’ Agent. The parties agree that, without limiting Parent’s choice of counsel, it shall be reasonable for Parent to use counsel that it has used in the past. The Stockholders’ Agent shall have the right to participate in the defense of the claim at its own expense (on behalf of the Indemnifying Parties). If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) Parent shall keep the Stockholders’ Agent reasonably informed as to the status of and all material developments in the defense;
(b) subject to the other provisions of this Article VIIIX, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnifying Parties and not made subject to the Deductible;
(bc) each Securityholder Indemnifying Party shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with such Indemnifying Party’s possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(cd) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of either the amount existence of damages incurred by the Parent Indemnitee in connection with such any claim or Legal Proceeding or determinative the amount of whether a Parent Damages incurred by the Indemnitee is entitled to indemnification or other relief in connection with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Stockholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Stockholders’ Agent shall not unreasonably withhold or delay such consent). .
(e) If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Any settlement, adjustment or compromise of a claim or Legal Proceeding with the written consent of Parent shall be conclusive evidence of the amount of Damages incurred by the Indemnitee in connection with such claim or Legal Proceeding. Parent shall give the Securityholder Representative Stockholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Stockholders’ Agent shall not limit any of the indemnification obligations of the Securityholders under this set forth in Article VIII X (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In If any lawsuit or enforcement action is filed against any indemnified Person, written notice thereof shall be given to the indemnifying Person(s) as promptly as practicable (and in any event within 15 calendar days after the service of the assertion citation or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) summons). The failure of any claim or Legal Proceeding (whether against the Surviving Companyindemnified Person to give timely notice hereunder shall not affect rights to indemnification hereunder, Parent or any other Person) with respect to which any Securityholder may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory except to the Securityholder Representativeextent that the indemnifying Person(s) demonstrate they were actually prejudiced by such failure. If Parent so proceeds with After such notice, if the defense of any such claim or Legal Proceeding:
(aindemnifying Person(s) subject shall acknowledge in writing to the other provisions of this Article VIII, all reasonable expenses relating to indemnified Person that the defense of such claim or Legal Proceeding indemnifying Person(s) shall be borne and paid exclusively by obligated under the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense terms of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee its indemnity hereunder in connection with such claim lawsuit or Legal Proceeding action, then the indemnifying Person(s) shall be entitled, if its so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such lawsuit or determinative action, (ii) to employ and engage attorneys of whether a Parent Indemnitee is entitled their own choice to indemnification or other relief with respect to damages related handle and defend the same unless the named parties to such claim action or Legal Proceeding proceeding include both an indemnifying Person and the indemnified Person and the indemnified Person has been advised in writing by counsel that there may be one or more legal defenses available to such indemnified Person that are different from or additional to those available to the indemnifying Person(s), in which event the indemnified Person shall be entitled, at the indemnifying Person(s)'s cost, risk and expense, to separate counsel of its own choosing, and (it being understood that if Parent requests that the Securityholder Representative consent iii) to a settlementcompromise or settle such claim, adjustment which compromise or compromise, the Securityholder Representative settlement shall not unreasonably withhold or delay such consent). If Parent does not elect to proceed be made only with the defense written consent of any the indemnified Person, such claim or Legal Proceeding, the Securityholder Representative may proceed consent not to be unreasonably withheld. The indemnified Person shall cooperate in all reasonable respects with the indemnifying Person(s) and its attorneys in the investigation, trial and defense of such claim lawsuit or Legal Proceeding with counsel reasonably satisfactory to Parentaction and any appeal arising therefrom; provided, however, that the Securityholder Representative may not settleindemnified Person may, adjust at its own cost, participate in the investigation, trial and defense of such lawsuit or compromise action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers. If the indemnifying Person fails to assume the defense of such claim or Legal Proceeding without within 15 calendar days after receipt of the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of claim, the commencement indemnified Person against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying Person) have the right to undertake, at the indemnifying Person's cost, risk and expense, the defense, compromise or settlement of any such Legal Proceeding against Parent, Merger Sub or claim on behalf of and for the Companyaccount and risk of the indemnifying Person; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative such claim shall not limit any be compromised or settled without the written consent of the obligations of indemnifying Person, which consent shall not be unreasonably withheld. If the Securityholders under this Article VIII (except to the extent such failure materially prejudices indemnified Person assumes the defense of the claim, the indemnified Person will keep the indemnifying Person reasonably informed of the progress of any such Legal Proceedingdefense, compromise or settlement. The indemnifying Person shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 10.2 and for any final judgment (subject to any right of appeal), and the indemnifying Persons agree to indemnify and hold harmless an indemnified Person from and against any Damages by reason of such settlement or judgment.
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the any Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder of the Selling Stockholders may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersSelling Stockholders;
(b) each Securityholder Selling Stockholder shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his or its possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the Selling Stockholders' Agent (as defined in Section 10.1); provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence unreasonably withheld. Parent shall give the Selling Stockholders' Agent prompt notice of the amount commencement of damages incurred by the Parent Indemnitee in connection with any such claim or Legal Proceeding against Parent or determinative any Surviving Corporation; provided, however, any failure on the part of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that so notify the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative Selling Stockholders' Agent shall not unreasonably withhold or delay limit any of the obligations of the Selling Stockholders under this Section 9 (except to the extent such consentfailure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Selling Stockholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Selling Stockholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceedingwithheld).
Appears in 1 contract
Sources: Merger Agreement (Ebay Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against Merger Sub, the Surviving Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of any such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeStockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 9, all reasonable fees and expenses relating to the defense of any such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of any such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent shall have the right to settle, adjust or compromise any such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that that: (i) if Parent requests that the Securityholder Representative Stockholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Stockholders’ Agent shall not unreasonably withhold or delay such consent). If ; and (ii) if Parent does not elect pursues a claim against the Indemnitors with respect to proceed with any matter for which Parent enters into a settlement, adjustment or compromise without the defense consent of any the Stockholders’ Agent and such claim or Legal Proceedingis submitted to arbitration under Exhibit C, both the Securityholder Representative may proceed Stockholders’ Agent and Parent shall be entitled to provide to the arbitrator, and the arbitrator shall take into account, evidence with respect to why the defense amount of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; providedthe settlement, however, that the Securityholder Representative may not settle, adjust adjustment or compromise any should not (or should) have a bearing on the amount of Damages to which the Indemnitees are entitled, which evidence may evidence with respect to the Stockholders’ Agent’s views as to why Parent entered into such claim settlement, adjustment or Legal Proceeding without the prior written consent compromise (e.g., to avoid a dispute with a major customer of Parent (which consent may not be unreasonably withheld or delayedParent)). Parent shall give the Securityholder Representative Stockholders’ Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative Stockholders’ Agent shall not limit any of the obligations of the Securityholders Indemnitors under this Article VIII Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Merger Agreement (Oclaro, Inc.)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder the Surviving Corporation may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 10, Parent shall give the Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding; provided, however, that any failure on the part of Parent to so notify the Shareholders' Agent shall not limit any of the obligations of the Selling Shareholders or the Company under this Section 10 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). Promptly after receipt by the Shareholders' Agent of a notice of a claim pursuant to this Section 10.8, the Selling Shareholders shall be entitled to participate in the defense of such claim or Legal Proceeding, and, to the extent such Selling Shareholders shall wish, to assume the defense thereof, with counsel reasonably satisfactory to the Parent. After notice from the Shareholders' Agent to the Parent of its election to assume the defense thereof, such Selling Shareholder shall not be liable to the Parent for any legal expenses subsequently incurred by the Parent in connection with the defense thereof; provided, however, that if there exists or shall exist a conflict of interest that would make it inappropriate, in the opinion of counsel to the Parent, for the same counsel to represent both the Parent and such Selling Shareholders or any affiliate or associate thereof, the Parent shall be entitled to retain its own counsel at the expense of such Selling Shareholder; provided, however, that the Selling Shareholders shall not be responsible for the fees and expenses of more than one separate counsel for the Parent. If the Selling Shareholders elect to participate in the defense of any claim or Legal Proceeding, Parent will use reasonable efforts to assign to Selling Shareholders any contractual right to a defense or indemnity arising out of any insurance policy in effect prior to the Closing Date and on which the Company is a "Named Insured" as that term is defined under any such policy, subject to any restrictions or limitations imposed on assignment by any such insurance policy or applicable law. If the Shareholders' Agent does not elect to 37. proceed with the defense of any such claim as provided herein, the Parent shall have the right, at its election, right to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersSurviving Corporation;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent neither Party shall have the right to settle, adjust or compromise such claim or Legal ProceedingProceeding with the consent of the other Party; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the unreasonably withheld; and
(c) Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect have any obligation to proceed with the defense assign to Selling Shareholders any rights arising out of any such claim or Legal Proceeding, the Securityholder Representative may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)insurance policy.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving Intermediate Sub, Merger Sub, any Acquired Company, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9.2(a), Parent shall have the right, at its election, right to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeSecurityholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the written consent of the Securityholder RepresentativeSecurityholders’ Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent requests that the Securityholder Representative Securityholders’ Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Securityholders’ Agent shall not unreasonably withhold or delay such consent); provided, further that with respect to any claim or Legal Proceeding asserted or commenced pursuant to Section 9.2(a)(viii), Parent shall not have the right to settle, adjust or compromise such claim or Legal Proceeding without the prior written consent of the Securityholders’ Agent (not to be unreasonably withheld, delayed or conditioned; it being understood and agreed that Securityholders' Agent shall be deemed to be acting unreasonably in connection with any failure to consent to any such settlement, adjustment or compromise if it would reasonably be expected that the failure to enter into such settlement, adjustment or compromise would materially and adversely affect the Company’s rights in the Company Intellectual Property). The mere existence of any such claim or Legal Proceeding shall not create a presumption of any breach by the Company to this Agreement of any of its representations, warranties or covenants set forth in this Agreement;
(b) Parent shall keep the Securityholders’ Agent advised of and shall consult with the Securityholders’ Agent in good faith the status of such claim or Legal Proceeding and the defense thereof and shall consider in good faith recommendations made by the Securityholders’ Agent with respect thereto; and
(c) the Securityholders’ Agent shall be entitled, at the Indemnitors’ expense, to participate in the defense of such claim or Legal Proceeding. Parent shall give the Securityholders’ Agent prompt notice of (and in any event within five (5) Business Days after becoming aware of such claim or Legal Proceeding) (a) any third party claim, including any action or proceeding commenced or threated to be commenced by any third party which Parent reasonably believes may result in a claim for indemnification pursuant to this Section 9 and (b) the commencement of any such Legal Proceeding against Parent, Intermediate Sub, Merger Sub or the Surviving Company by any third party which Parent reasonably believes may result in a claim for indemnification pursuant to this Section 9, along with (to the extent permitted by applicable Legal Requirements) copies of any documentation submitted by the third party making such claim or commencement such Legal Proceeding and shall describe in reasonable detail (to the extent known by Parent) the facts constituting the basis for such claim or Legal Proceeding and the amount of the claimed damages sought by such third party; provided, however, that any failure on the part of Parent to so notify the Securityholders’ Agent shall not limit any of the obligations of the Indemnitors under this Section 9 (except to the extent the Indemnitors are materially prejudiced as a result thereof). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Securityholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Securityholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld withheld, conditioned or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except Notwithstanding anything to the extent such failure materially prejudices contrary in this Agreement, any Tax Matter shall be subject to the defense provisions of such Legal Proceeding)Section 9.9(e) and not this Section 9.5.
Appears in 1 contract
Defense of Third Party Claims. In (a) Acquiror shall determine and conduct the event defense or settlement of any Third-Party Claim, and the assertion costs and expenses incurred by Acquiror in connection with such defense or commencement settlement (including reasonable attorneys’ fees, 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 (other than Parent, Parent's Affiliates, hereunder to the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against extent provided in this Article 12. An Acquiror Indemnified Person shall exercise commercially reasonable efforts to mitigate Damages for which the Surviving Company, Parent or any other Person) with respect to which any Securityholder may become Effective Time Holders are obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee provide indemnification for and against pursuant to this Article VIII, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representative. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;12.
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest); and
(c) Parent The Representative shall have the right to settlereceive copies of all pleadings, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder Representative, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief notices and communications with respect to damages related the Third-Party Claim to the extent that receipt of such claim or Legal Proceeding (it being understood that if Parent requests that documents by the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative shall not unreasonably withhold or delay such consent). If Parent does not elect affect any privilege relating to proceed the Acquiror Indemnified Person and may participate in, but not to determine or conduct, any defense of the Third-Party Claim or settlement negotiations with respect to the defense Third-Party Claim.
(c) No settlement of any such claim or Legal Proceeding, the Securityholder Representative may proceed Third-Party Claim with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative may not settle, adjust or compromise any such claim or Legal Proceeding third party claimant shall be made without the prior written consent of Parent (the Representative, which consent may shall not be unreasonably withheld withheld, conditioned or delayed)delayed and which shall be deemed to have been given unless the Representative shall have objected within 15 calendar days after a written request for such consent by Acquiror. Parent In the event that the Representative has consented to any such settlement, neither the Representative nor any Effective Time Holder shall give have any power or authority to object under any provision hereof to the Securityholder Representative prompt notice of the commencement amount of any claim by or on behalf of any Acquiror Indemnified Person against the General Escrow Shares, General Escrow Cash, IP Escrow Shares, IP Escrow Cash, earned but unpaid First Booking Earnout or Subsequent Booking Earnouts, previously paid First Booking Earnout or Subsequent Booking Earnouts, or Effective Time Holders for indemnity with respect to such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding)settlement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Magma Design Automation Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against any of the Surviving CompanyAcquired Companies, Parent against Purchaser or against any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 6, Parent Purchaser shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeShareholders' Agent. If Parent Purchaser so proceeds with the defense of any such claim or Legal Proceeding:
(a) : subject to the other provisions of this Article VIIISection 6, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) Indemnitors; each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent Purchaser any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Proceeding; and
(c) Parent and Purchaser shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent Purchaser settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeShareholders' Agent, such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled to indemnification or other relief with respect to damages related to such claim or Legal Proceeding (it being understood that if Parent Purchaser requests that the Securityholder Representative Shareholders' Agent consent to a settlement, adjustment or compromise, the Securityholder Representative Shareholders' Agent shall not unreasonably withhold or delay such consent). Purchaser shall give the Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Purchaser or any of the Acquired Companies; provided, however, that any failure on the part of Purchaser to so notify the Shareholders' Agent shall not limit any of the obligations of the Indemnitors under Section 6 (except to the extent such failure materially prejudices the defense of such Legal Proceeding). If Parent Purchaser does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Shareholders' Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to ParentPurchaser; provided, however, that the Securityholder Representative Shareholders' Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent Purchaser (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) of any claim or Legal Proceeding (whether against the Surviving CompanyCorporation, against Parent or against any other Person) with respect to which any Securityholder the Company may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 9, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder Representativeown. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIII, all All reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the Securityholders;
(b) each Securityholder shall use commercially reasonable efforts to cooperate with Parent in connection with the defense of such claim or Legal Proceeding (provided that no Securityholder shall be required to make any admissions against interest)Parent; and
(cb) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that if Parent settles, adjusts or compromises any such claim or Legal Proceeding without with the consent of the Securityholder RepresentativeDesignated Shareholders' Agent, such which consent shall not be unreasonably withheld (it being agreed that the Designated Shareholders' Agent may, but need not, defer taking any action with respect to a proposed settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages incurred by the Parent Indemnitee in connection with such any claim or Legal Proceeding or determinative for a period of whether a Parent Indemnitee is entitled up to indemnification or other relief with respect sixty (60) days to damages related to such claim or Legal Proceeding seek specific authorization from the Former Company Stockholders acting by affirmative vote of the majority in interest thereof (it being understood that if Parent requests excluding the shares held by the Designated Shareholders' Agent and members of his family), provided that the Securityholder Representative results of any such vote shall have no effect on any determination as to whether any such consent was or was not unreasonably withheld and provided, further, that the failure to a settlement, adjustment or compromise, the Securityholder Representative give such consent shall not unreasonably withhold create any personal liability of the Designated Shareholders' Agent to Parent or delay such consentSurviving Corporation). If Parent does not elect shall provide to proceed with the defense Designated Shareholders' Agent a copy of any all pleadings and other documents filed or exchanged in respect of such claim or Legal Proceeding, and otherwise keep the Securityholder Representative may Designated Shareholders' Agent fully informed as to the status and progress of such defense. Parent, as promptly as reasonably practicable, shall notify the Designated Shareholders' Agent whether it intends to defend such claim or Legal Proceeding. If Parent notifies the Designated Shareholders' Agent that it does not intend to defend same, or if it fails timely to initiate or proceed with the defense of same, the Former Company Stockholders, acting by and through the Designated Shareholders' Agent, shall have the right, by notice to Parent, to assume the defense of the claim or Legal Proceeding. Parent shall fully cooperate with the Designated Shareholders' Agent in its defense of such claim or Legal Proceeding with counsel reasonably satisfactory Proceeding. Nothing herein shall be construed to Parent; providedgrant such right to the Designated Shareholders' Agent under any other circumstances, however, that including the Securityholder Representative may not settle, adjust or compromise alleged quality of any defense proferred by Parent to such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed)Proceeding. Parent shall give the Securityholder Representative Designated Shareholders' Agent prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub Parent or the CompanySurviving Corporation; providedPROVIDED, howeverHOWEVER, that any failure on the part of Parent to so notify the Securityholder Representative Designated Shareholders' Agent shall not limit any of the obligations of the Securityholders Former Company Stockholders under this Article VIII Section 9 (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Transition Analysis Component Technology Inc)
Defense of Third Party Claims. In the event of the assertion or commencement by any Person (other than Parent, Parent's Affiliates, the Surviving Company or any other Parent Indemnitee) third party of any claim or Legal Proceeding (whether against any Merger Sub, any of the Surviving CompanyAcquired Companies, Parent or any other Person) with respect to which any Securityholder Indemnitor may become obligated to hold harmless, indemnify, compensate or reimburse any Parent Indemnitee pursuant to this Article VIIISection 4, Parent shall have the right, at its election, to proceed with the defense of such claim or Legal Proceeding on its own with counsel reasonably satisfactory to the Securityholder RepresentativeStockholders’ Agent. If Parent so proceeds with the defense of any such claim or Legal Proceeding:
(a) subject to the other provisions of this Article VIIISection 4, all reasonable expenses relating to the defense of such claim or Legal Proceeding shall be borne and paid exclusively by the SecurityholdersIndemnitors to the extent the Indemnitors are obligated to indemnify under this Section 4 for such claim or Legal Proceeding;
(b) each Securityholder Indemnitor shall use commercially reasonable efforts make available to cooperate with Parent any documents and materials in connection with his possession or control that may be necessary to the defense of such claim or Legal Proceeding Proceeding;
(provided that no Securityholder c) The Stockolders’ Agent shall be required have the right, in its discretion and at its or the Major Stockholders’ own expense, to make any admissions against interest)participate in, but not control, the defense of such claim, and Parent shall keep the Stockolders’ Agent reasonably informed as to the defense of such claim; and
(cd) Parent shall have the right to settle, adjust or compromise such claim or Legal Proceeding; provided, however, that notwithstanding anything to the contrary in the last paragraph of Section 4.2(a)(vii) or Section 4.5, if Parent settles, adjusts or compromises any such claim or Legal Proceeding without the consent of the Securityholder RepresentativeStockholders’ Agent (it being understood that if Parent requests that the Stockholders’ Agent consent to a settlement, adjustment or compromise, the Stockholders’ Agent shall not unreasonably withhold or delay such consent), such settlement, adjustment or compromise shall not be conclusive evidence of the amount of damages Damages incurred by the Parent Indemnitee in connection with such claim or Legal Proceeding or determinative of whether a Parent Indemnitee is entitled the Indemnitors are obligated to indemnification or other relief with respect to damages related to indemnify the Indemnitors under this Section 4 for such claim or Legal Proceeding. Parent shall give the Stockholders’ Agent prompt written notice of the commencement of any such Legal Proceeding (it being understood against Parent, any Merger Sub or any of the Acquired Companies; provided, however, that if any failure on the part of Parent requests that to so notify the Securityholder Representative consent to a settlement, adjustment or compromise, the Securityholder Representative Stockholders’ Agent shall not unreasonably withhold or delay limit any of the obligations of the Indemnitors under Section 4 (except to the extent such consentfailure materially prejudices the defense of such Legal Proceeding). If Parent does not elect to proceed with the defense of any such claim or Legal Proceeding, the Securityholder Representative Stockholders’ Agent may proceed with the defense of such claim or Legal Proceeding with counsel reasonably satisfactory to Parent; provided, however, that the Securityholder Representative Stockholders’ Agent may not settle, adjust or compromise any such claim or Legal Proceeding without the prior written consent of Parent (which consent may not be unreasonably withheld or delayed). Parent shall give the Securityholder Representative prompt notice of the commencement of any such Legal Proceeding against Parent, Merger Sub or the Company; provided, however, that any failure on the part of Parent to so notify the Securityholder Representative shall not limit any of the obligations of the Securityholders under this Article VIII (except to the extent such failure materially prejudices the defense of such Legal Proceeding).
Appears in 1 contract
Sources: Merger Agreement (Yelp Inc)