Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
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Defense. In At the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing request of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceParty, the Indemnifying Party shall have promptly assume the option, at its sole cost and expense, costs of defense of an Indemnifiable Claim. The Indemnifying Party shall retain experienced counsel reasonably satisfactory to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the and thereafter shall control defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldclaim. The Indemnified Party shall have Notwithstanding the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenforegoing, the Indemnified Party shall have the right to retain counsel of its own counsel at choice and control the sole cost and expense defense of the Indemnifiable Claim under any of the following circumstances:
(i) The Indemnifying PartyParty fails to assume the defense of an Indemnifiable Claim within five days after receiving written notice of the existence of the claim; or
(ii) The Indemnifying Party agrees to assume the defense of an Indemnifiable Claim but either reserves its rights to challenge, which costs or does not upon request acknowledge in writing, its obligation to indemnify the party seeking indemnity with respect to the Indemnifiable Claim; or
(iii) The persons against whom the Indemnifiable Claim shall have been brought, asserted or threatened (including any impleaded parties) include both the Indemnified Party and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of and the Indemnified Party. If any Indemnified Party will have been is advised by counsel chosen by it that there may be one or more legal defenses available to such the Indemnified Party which that are different from or in addition additional to those which have been asserted by available to the Indemnifying Party. If the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of does not assume such defense or the Indemnified Party, the Indemnifying Party will not have has the right to continue control the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the NoticeIndemnifiable Claim, the Indemnified Party may retain counsel compromise or settle the Indemnifiable Claim on behalf of and conduct for the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost account and expense risk of the Indemnifying Party, which costs and expenses who shall be paid bound by the Indemnifying Party on a current basisresult. Failure In all cases, the party without the right to provide Notice shall not limit control the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by Indemnifiable Claim may participate in the defense at its own expense. The parties shall cooperate in the defense of all third party claims which may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party shall make available to the party controlling such failuredefense, any books, records or other documents within its control that are reasonably requested in the course of such defense.
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Defense. In the event If any Person or entity not a party to this Agreement shall make a claim, demand or claim or file or threaten to file or continue liability is asserted by any lawsuit, which demand, claim or lawsuit may result in liability to an third party against any Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceParty, the Indemnifying Party shall have the optionright and shall upon the written request of the Indemnified Party, at its sole cost and expense, to retain counsel for defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldand, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. The In any such action or proceeding, the Indemnified Party shall have the rightright to retain its own counsel, but the fees and expenses of such counsel shall be at its own expenseexpense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (ib) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of both parties the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate inadvisable due to actual or potential differing conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense, (i) it shall be conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification, but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party has not retained separate counsel for does not, within twenty (20) days after the Indemnified Party's written notice is given, (ii) give written notice to the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel of its election to assume the defense of such action within a reasonable time; thenAction, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basisshall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. No Indemnifying Party, in In connection with the defense of any such demandclaim, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified each Party will have been advised by counsel chosen by it that there may be one or more legal defenses shall make available to such Indemnified the Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis defense, any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the such defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hovnanian Enterprises Inc)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except Except as otherwise provided in the next sentenceherein, the Indemnifying Party shall have the optionmay elect to compromise or defend, at its sole cost such Indemnifying Party's own expense and expenseby such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to retain counsel for compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend any such demandagainst the Third Party Claim, claim or lawsuitfails to notify the Indemnified Party of its election to do so as herein provided, provided that counsel who will conduct or otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any such proceeding Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (including any impleaded partiesx) include both there is a conflict of interest between the Indemnifying Party and the Indemnified PartyParty in the conduct of the defense of such Third Party Claim, representation of both parties by or (y) there are specific defenses available to the same counsel would be inappropriate due Indemnified Party which are different from or additional to actual or potential differing interests between them, and those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own be represented by counsel at the sole cost and expense of the Indemnifying Partyselected by it. In such an event, which costs and expenses shall be paid by the Indemnifying Party on shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a current basis. No Indemnifying Partythird party in respect of such Third Party Claim is monetary damages that are paid in full (subject to the Sellers' Basket or the WRF Basket, as applicable) by the party settling or compromising such claim, the settlement or compromise includes a complete release of the other party or parties hereto and, in the defense case of any such demand, claim a settlement or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised compromise by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue has abandoned the defense of such demandThird Party Claim) over the objection of the other, claim provided, however, that consent to settlement or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defensecompromise shall not be unreasonably delayed or withheld. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Noticeany event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party may retain counsel and conduct each participate, at its own expense, in the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by Third Party Claim. If the Indemnifying Party on a current basis. Failure chooses to provide Notice defend any claim, the Indemnified Party shall not limit the rights of such party to indemnification, except make available to the extent Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
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Defense. In the event If any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to such action is brought against an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceindemnified party, the Indemnifying indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any suit, action legal or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties other expenses subsequently incurred by the same counsel would be inappropriate due to actual or potential differing interests between them, and latter in connection with the Indemnifying defense thereof unless the indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel failed to assume the defense of such action within a reasonable time; thenclaim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the Indemnified Party shall have the right indemnified party will be entitled to retain select its own counsel at and assume the sole cost defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and expense the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the Indemnifying Partyindemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, which costs and in each case, with the expenses shall of such defense to be paid by the Indemnifying indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party on a current basisin the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the Indemnified Party. If any Indemnified Party will have been advised indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by counsel chosen by it that there may be one the claimant or more legal defenses available plaintiff to such Indemnified Party which are different indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defensesenter into any settlement of any such action, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demandwhich has been assumed by an indemnifying Party, claim or lawsuit on behalf without the consent of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice consent shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In The procedures to be followed by any party with respect to indemnification hereunder regarding claims by third persons shall be as follows: 49
(a) Promptly after receipt by any party of notice of the event commencement of any Person action or entity not the assertion of any claim by a third person which the party receiving such notice has reason to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit believe may result in liability a claim by it for indemnity pursuant to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, such party (each, an "Indemnified Party") shall give a notice of such action or in the event that a potential Loss, damage or expense comes claim to the attention other party against whom indemnification pursuant hereto is sought (each, an "Indemnifying Party"), setting forth in reasonable detail the nature of such action or claim, including copies of any Party in respect of matters embraced written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the indemnity under this Agreement, then immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the extent the Indemnifying Party receiving notice or becoming aware is actually and materially prejudiced by reason of such event shall promptly failure or delay. The indemnifying Party may, at its own expense, assume and control the defense of any claim for which it has received notice in accordance with this Section 13.5 and notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demandassumption. The Indemnified Party shall be entitled to participate therein after such assumption, claim or lawsuit, except as provided in the next sentencecosts of such participation following such assumption to be at its own expense. Upon assuming such defense, the Indemnifying Party shall have full rights to enter into any monetary compromise or settlement which is dispositive of the optionmatters involved; provided, however, that no such settlement shall be made without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld;
(b) If the Indemnifying Party does not assume the defense of any claim promptly after receiving notice thereof by the Indemnified Party, the Indemnified Party may assume and control the defense of and contest such action with counsel chosen by it and approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying Party shall be entitled to participate in the defense of such action, the cost of such participation to be at its sole cost own expense. The Indemnifying Party shall be obligated to pay the reasonable attorneys' fees and expense, to retain counsel for expenses of the Indemnified Party to defend any the extent that such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldfees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have the right, at its own expense, full rights to participate in the defense dispose of such action and enter into any suit, action monetary compromise or proceeding brought against it with respect to which indemnification may be sought hereundersettlement; provided, however, if that no such settlement shall be made without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld; and
(ic) the named parties to any such proceeding (including any impleaded parties) include both Both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have reasonably cooperate fully (but not including the right to retain its own counsel at waiver of any privileged communication) with one another in connection with the sole cost and expense of the Indemnifying Partydefense, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense compromise or settlement of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureaction.
Appears in 1 contract
Defense. In the event any Person person or entity not a party to this Agreement shall make a demand or claim or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Indemnified Party receiving notice or becoming aware of such event shall promptly notify the other Indemnifying Party in writing of the demand, claim or lawsuit. Within ten fifteen (15) days after written notice by delivery of the Indemnified Party (Indemnification Notice to the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will shall conduct the defense of such demand, claim or lawsuit will shall be approved by the Indemnified Party whose approval will shall not unreasonably be withheldwithheld or delayed. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Parties to any such proceeding (including any impleaded partiesParties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties Parties by the same counsel would be inappropriate due to actual or potential differing interests between themthem (other than differing interests associated with an Indemnifying Party’s obligation to indemnify), and the Indemnifying Party has not retained separate counsel for the Indemnified Party, or (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable timefifteen (15) days after delivery of the Indemnification Notice; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten 15 days after receipt delivery of the Indemnification Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide an Indemnification Notice shall not limit the rights of such any party to indemnification, except to the extent that the Indemnifying Party's defense of the action Party is actually prejudiced by such failurethereby.
Appears in 1 contract
Defense. In For purposes of this Section 9.5, a "Protected Party" shall refer to a Buyer Protected Party or a Seller Protected Party, as appropriate. If the event facts pertaining to a Loss arise out of the claim of any Person third party, or entity not if there is any claim against a third party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to (other than an Indemnified Party in respect of matters embraced or a Protected Party) available by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing virtue of the demand, claim or lawsuit. Within ten days after written notice by circumstances of the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceLoss, the Indemnifying Party shall have may assume the optiondefense or the prosecution thereof by prompt written notice to the Indemnified Party and the affected Protected Party, including the employment of counsel or accountants, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified affected Protected Party shall have the right to retain its own employ counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid separate from counsel employed by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demandaction and to participate therein, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without but the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained employed by the Indemnified Party to undertake and the defenseaffected Protected Party shall be at their expense. In the event The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnifying Party shall fail to respond does not 37 38 assume the defense or prosecution of a claim as provided above within ten thirty (30) days after receipt of the Noticenotice thereof from any Protected Party, the Indemnified Party and the affected Protected Party may retain counsel and conduct the defense of settle such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent without the Indemnifying Party's consent. The Indemnifying Party shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Protected Party without the Indemnified Party's and the affected Protected Party's prior written consent. Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to all rights and remedies of the action is actually prejudiced by such failureany Protected Party.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (World Access Inc /New/)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to Promptly after receipt by an Indemnified Party in respect Person of matters embraced by notice of the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention commencement of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, howeversuch person shall notify the Indemnitor of the commencement of such action or proceeding, if (i) but failure so to notify the named parties to Indemnitor shall not relieve the Indemnitor from any such proceeding (including any impleaded parties) include both liability which the Indemnifying Party and Indemnitor may have hereunder or otherwise, unless the Indemnified Party, representation of both parties by the same counsel would Indemnitor shall be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel materially prejudiced by such Indemnified Party has been authorized in writing by failure. If the Indemnifying PartyIndemnitor shall so elect, or (iii) the Indemnifying Party has not in fact employed counsel to Indemnitor shall assume the defense of such action within or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person reasonably shall determine in its judgment that having com- mon counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the action or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend it in any such action or proceeding, and the Indemnitor shall pay the reasonable timefees and dis- bursements of such counsel; thenprovided, however, that the Indemnitor shall not be required to pay the fees and disbursements of more than one separate counsel for all Indemnified Persons in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Indemnitor shall assume, the Indemnified Party Person shall have the right to participate in such litigation and to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by Person's own expense, so long as such participation shall not interfere with the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense Indemnitor's control of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurelitigation.
Appears in 1 contract
Sources: Series C Convertible Preferred Stock Purchase Agreement (Phoenix Information Systems Corp)
Defense. In If the event facts pertaining to a Loss arise out of the claim of ------- any Person third party, or entity if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party within 30 days following its receipt of the notice of such claim, elect to assume the defense or the prosecution of such claim, including the employment of counsel or accountants at its cost and expense; provided, however, that during the interim the Indemnified Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss; provided that such counsel or accountants shall be reasonably satisfactory to the Indemnified Party; provided that the Indemnity Obligor agrees prior to assuming such defense or prosecution of the claim that it is obligated to indemnify the Indemnified Party for the loss suffered by the Indemnified Party as a party result of such claim; provided that the Indemnity Obligor can demonstrate to this Agreement shall make a demand the reasonable satisfaction of the Indemnified Party that such Indemnity Obligor has the financial ability to satisfy such indemnity obligation; and provided that any compromise or claim or file or threaten to file or continue any lawsuitsettlement must be reasonably approved by the Indemnified Party. Notwithstanding the foregoing, which demand, claim or lawsuit may result in liability to if an Indemnified Party determines in respect good faith that there is a reasonable probability that a claim may adversely affect it or its affiliates other than as a result of matters embraced by the indemnity monetary damages for which it would be entitled to indemnification under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (may, by notice to the "Notice") Indemnity Obligor, assume the exclusive right to an Indemnifying Party of defend, compromise or settle such demandclaim, claim or lawsuit, except as provided in but the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval Indemnity Obligor will not be bound by any determination of a claim so defended or any compromise or settlement effected without its consent (which may not be unreasonably be withheld). The Indemnified Party shall have the right, at its own expense, right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained by shall be at the Indemnified Party Party's own expense. Whether or not the Indemnity Obligor chooses so to undertake defend or prosecute such claim, all the defense. In the event that the Indemnifying Party parties to this Agreement shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct cooperate in the defense or prosecution of such demandclaim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. No Indemnity Obligor shall be liable for any settlement of any such claim or lawsuit, as it may in effected without its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyprior written consent, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMTC Corp)
Defense. In Subject to the event any Person or entity not a party to limitations set forth in this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitSection 7.5(b), which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that of a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceClaim, the Indemnifying Party shall have the optionright (exercisable by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the Third Party Claim) to elect to conduct and control, through counsel of its choosing and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to retain counsel for conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine on written advice of outside counsel that use of counsel selected by the Indemnifying Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by represent the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightwould present such counsel with an actual or potential conflict of interest, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (iD) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Third Party and Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by then in each such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, case the Indemnified Party shall have the right to retain control the defense, compromise or settlement of the Third Party Claim with counsel of its own counsel choice at the Indemnifying Party’s sole cost and expense expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying PartyParty and the Indemnified Party shall, which costs and expenses shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be paid reasonably requested by the Indemnifying Party on a current basisor the Indemnified Party in connection therewith. No Indemnifying PartyIn addition, in the party controlling the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without Third Party Claim shall keep the consent non-controlling party advised of the Indemnified Party. If status thereof and shall consider in good faith any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted recommendations made by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person non-controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurewith respect thereto.
Appears in 1 contract
Defense. In the event connection with any Person claim which may give rise to indemnity hereunder resulting from or entity not a party to this Agreement shall make a demand or arising out of any claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced legal proceeding by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the person other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of than the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem properParty, at the sole cost and expense of the Indemnifying Party (or, in the case of the Stockholders' Representative, at the sole cost and expense of the Stockholders), may, upon written notice to the Indemnified Party, which costs and expenses shall be paid by assume the defense of any such claim or legal proceeding if the Indemnifying Party on a current basisacknowledges to the Indemnified Party in writing the obligation of the Indemnifying Party (or in the case of the Stockholders' Representative, the Stockholders) to indemnify the Indemnified Party with respect to all elements of such claim. Failure If the Indemnifying Party assumes the defense of any such claim or legal proceeding, the Indemnifying Party shall select counsel reasonably acceptable to provide Notice the Indemnified Party to conduct the defense of such claims or legal proceedings and at the sole cost and expense of the Indemnifying Party (or in the case of the Stockholders' Representative, the sole cost and expense of the Stockholders) shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not limit consent to a settlement of, or the rights entry of any judgment arising from, any such party claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be entitled to indemnificationparticipate in (but not control) the defense of any such action, except with its own counsel and at its own expense. If the Indemnifying Party does not assume the defense of any such claim or litigation resulting therefrom within 30 days after the date such claim is made: (a) the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the extent the Indemnifying Party's , on such terms as the Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense (or in the action is actually prejudiced case of the Stockholders' Representative, at the expense of the Stockholders). If the Indemnifying Party (or, in the case of the Stockholders' Representative, the Stockholders) thereafter seeks to question the manner in which the Indemnified Party defended such third party claim or the amount or nature of any such settlement, the Indemnifying Party (or, in the case of the Stockholders, the Stockholders' Representative) shall have the burden to prove by a preponderance of the evidence that the Indemnified Party did not defend or settle such failurethird party claim in a reasonably prudent manner.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Defense. In the event If any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitclaim, which demand, claim or lawsuit may result in liability to is asserted by any third party against an indemnified party, the indemnifying party shall upon written request of the Indemnified Party, defend any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the indemnity under this Agreementindemnity, but the indemnified party shall have the right to conduct and control the defense, compromise or in the event that a potential Loss, damage or expense comes to the attention settlement of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by Indemnifiable Claim if the Indemnified Party (chooses to do so, on behalf of and for the "Notice") to an account and risk of the Indemnifying Party of such demand, claim who shall be bound by the result so obtained to the extent provided herein. If after a request to defend any action or lawsuit, except as provided in the next sentenceproceeding, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party neglects to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties a recovery against the latter suffered by it in good faith, is conclusive in its favor against the same counsel would be inappropriate due to actual or potential differing interests between themIndemnifying Party, and provided however that, if the Indemnifying Party has not retained separate counsel for received reasonable notice of the action or proceeding against Indemnified Party, (ii) or is not allowed to control its defense, judgment against the employment of counsel by such Indemnified Party has been authorized in writing by is only presumptive evidence against the Indemnifying Party. Each Party hereto to the extent that it is or becomes an Indemnifying Party, or (iii) hereby stipulates that a judgment again an Indemnified Party shall be conclusive against the Indemnifying Party has not in fact employed counsel to assume for purposes of the defense of such action within a reasonable time; thenindemnification, unless specified otherwise above, the Indemnified Party Parties shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, cooperate in the defense of any such demandall third party claims, claim or lawsuit, will consent which may give rise to entry of any judgment or enter into any settlement without the consent of the Indemnified Partyindemnifiable claims hereunder. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue In connection with the defense of any claim, each party shall make available to the party controlling such demanddefense, claim any books, records or lawsuit on behalf other documents within its control that are reasonably requested in the course of such Indemnified Party defense and will reimburse necessary or appropriate for such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an The Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, and the Indemnifying Party shall have cooperate with the optionparty assuming the defense, at its sole cost and expense, to retain counsel for the Indemnified Party to defend compromise or settlement of any such demand, claim or lawsuit, provided Action in accordance herewith in any manner that counsel who will conduct such party reasonably may request. If the defense of such demand, claim or lawsuit will be approved by the Indemnified Indemnifying Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in so assumes the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenAction, the Indemnified Party shall have the right to retain its own employ separate counsel at and to participate in (but not control) the sole cost defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of the Indemnifying Party, which costs and expenses shall be paid by such Indemnified Party unless (a) the Indemnifying Party on a current basis. No Indemnifying Partyhas specifically agreed to pay such fees and expenses, in (b) any relief other than the defense payment of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of money damages is sought against the Indemnified Party. If any Party or (c) the Indemnified Party will shall have been advised by its counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which it that are different from or in addition additional to those which have been asserted by available to the Indemnifying Party or that there may be a conflict of interest between the Indemnifying Party and counsel retained by the Indemnified Party in the conduct of the defense of such Action (in either of which cases the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will shall not have the right to continue direct the defense defense, compromise or settlement of such demand, claim or lawsuit Action on behalf of the Indemnified Party), and in any such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for case the reasonable fees and expenses of any such separate counsel retained shall be borne by the Indemnified Party to undertake the defense. In the event Indemnifying Party, it being understood and agreed, however, that the Indemnifying Party shall fail to respond within ten days after receipt not be liable for the fees and expenses of the Notice, more than one separate firm of attorneys at any time for the Indemnified Party may retain counsel together with its Affiliates, unless there shall be a conflict of interest between the Indemnified Party and conduct an Affiliate thereof, in which case the defense Indemnifying Party shall not be liable for the fees and expenses of more than an aggregate of two separate firms of attorneys at any time for the Indemnified Party and its Affiliates. No Indemnified Party shall settle or compromise or consent to entry of any Judgment with respect to any such demand, claim or lawsuit, as Action for which it may in its sole discretion deem proper, at is entitled to indemnification hereunder without the sole cost and expense prior written consent of the Indemnifying Party, which costs and expenses shall be paid by unless the Indemnifying Party on a current basis. Failure shall have failed, after reasonable notice thereof, to provide Notice shall not limit the rights undertake control of such party to indemnificationAction in the manner provided above in this Section 7.4. The Indemnifying Party shall not, except to without the extent the Indemnifying Party's defense written consent of the action Indemnified Party, settle or compromise or consent to entry of any Judgment with respect to any such Action (x) in which any relief other than the payment of money damages is actually prejudiced or may be sought against any Indemnified Party, or (y) that does not include as an unconditional term thereof the giving by the claimant, party conducting such failureinvestigation, plaintiff or petitioner to such Indemnified Party of a release from all liability with respect to such Action.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Unitedglobalcom Inc)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except Except as otherwise provided in the next sentenceherein, the Indemnifying Party shall have the optionmay elect to compromise or defend, at its sole cost such Indemnifying Party's own expense and expenseby such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to retain counsel for compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend any such demandagainst the Third Party Claim, claim or lawsuitfails to notify the Indemnified Party of its election to do so as herein provided, provided that counsel who will conduct or otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compromise or defend such proceeding Third Party Claim (including until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any impleaded partiesThird Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) include both there is a conflict of interest between the Indemnifying Party and the Indemnified Party, representation Party in the conduct of both parties by the same counsel would be inappropriate due defense of such Third Party Claim or (y) there are specific defenses available to actual the Indemnified Party which are different from or potential differing interests between them, and additional to those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own counsel at direct the sole cost and expense defense of such Third Party Claim with the participation of the Indemnifying Party. In such an event, which costs the Indemnifying Party shall pay the reasonable fees and expenses shall be disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any Indemnifying Party may settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. If In any event, except as otherwise provided herein, the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by and the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenmay each participate, at the election of the Indemnified Partyits own expense, the Indemnifying Party will not have the right to continue in the defense of such demand, claim or lawsuit on behalf of such Indemnified Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaim. In the event that If the Indemnifying Party shall fail chooses to respond within ten days after receipt of the Noticedefend any claim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such party to indemnificationdefense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
Appears in 1 contract
Defense. In the event If a claim by a third party is made against any Person or entity not a party entitled to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity indemnification under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any such Indemnified Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing (i.e., within five (5) business days of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party having actual knowledge of such demandclaim) notify the indemnifying party of such claim. The indemnifying party shall have ten (10) business days after receipt of the above-referenced notice to undertake, claim or lawsuit, except as provided in through counsel of its choosing (subject to the next sentencereasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim settlement or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunderthereof; provided, however, if (i) the named parties to that any such proceeding (including any impleaded parties) include both settlement shall be subject to the Indemnifying Party and written consent of the Indemnified Party, representation which consent shall not be unreasonably withheld, conditioned or delayed. If approval of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themmonetary terms of any such proposed settlement is not given, and then the Indemnifying Party's maximum monetary obligation for any future settlement or judgment shall be the amount of the settlement that was not so approved. If the indemnifying party does not notify the Indemnified Party has not retained separate counsel for within ten (10) business days after receipt of the Indemnified Party, (ii) 's notice of a claim of indemnity hereunder that the employment of counsel by such Indemnified Party has been authorized in writing by indemnifying party elects to undertake the Indemnifying Partydefense thereof, or (iii) the Indemnifying Party has not indemnifying party ceases to reasonably contest such claim in fact employed counsel to assume the defense of such action within a reasonable time; thengood faith, the Indemnified Party shall have the right to retain its own counsel contest, settle or compromise the claim at the sole cost and expense of the Indemnifying Partyindemnifying party and subject to the written consent of the indemnifying party, which costs and expenses shall not be paid by the Indemnifying Party on a current basisunreasonably withheld, conditioned or delayed. No Indemnifying Party, in In connection with the defense of any claim, each party will make available to the party controlling such demanddefense, claim any books, records or lawsuit, will consent to entry other documents within its control that are reasonably requested in the course of such defense. Nothing contained in this Section 9.3.2 shall be construed as a limitation on the right of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureindemnification under this Agreement.
Appears in 1 contract
Defense. In the event If any Person or entity not a party Action that might reasonably be expected to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnifiable Claim is asserted or threatened by a third party against any Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceParty, the Indemnifying Party shall have the option, at its sole cost and expense, may elect to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, thereof with experienced counsel reasonably satisfactory to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by if the Indemnifying Party, or within fifteen (iii15) days after receipt of a notice of such Action fails to give written notice to the Indemnified Party that the Indemnifying Party has not in fact employed counsel to assume shall undertake the defense of thereof or thereafter fails to timely assume such action within a reasonable time; thendefense, then the Indemnified Party shall have the right to retain its own counsel at defend, compromise or settle the sole cost and expense Action for the account of the Indemnifying Party, which costs and expenses shall be paid . An assertion by the Indemnifying Party on of a current basisreservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. No If, after the Indemnifying Party, in Party has undertaken the defense of any such demandthe Action, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available reasonably believes (and gives notice thereof to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by Party) that an Indemnifiable Claim may materially adversely affect the Indemnifying Party declines to assert those defenses, then, at the election business or operations of the Indemnified Party, then the Indemnifying Indemnified Party will not shall have the right to continue participate in the defense of such demandthe Action at its own expense, claim or lawsuit on behalf subject to the reasonable direction of such Indemnified the other party. Each of the Indemnifying Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party shall give all reasonable assistance to undertake the defenseother party in connection therewith. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Noticeany case, the Indemnified Party may retain counsel shall, subject to Section 10.10, make available to the Indemnifying Party and conduct its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the Indemnified Party is or was required to give notice. The party having control of the defense of such demandan Action shall notify the other party of every proposal, claim oral or lawsuitwritten, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyfor settlement, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureit receives or makes.
Appears in 1 contract
Defense. In If any of the event any Person indemnified parties is made or entity not threatened to be ------- made a defendant in or party to any action or proceeding, judicial or administrative, instituted by any third party for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to this Agreement Paragraph I (any such third party action or proceeding being referred to as an "Indemnification Claim"), the indemnified party or parties shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes give prompt notice thereof to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, indemnifying party; provided that counsel who will conduct the defense of failure to give such demand, claim notice shall not affect the indemnified -------- party or lawsuit will be approved by parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the Indemnified Party whose approval will not unreasonably be withheldindemnifying party or parties' ability to prosecute successfully an Indemnification Claim. The Indemnified Party Each indemnified party shall have permit the rightindemnifying party, at its own expense, to participate in assume the defense of any suitsuch claim or any litigation to which this Paragraph 1 may be applicable, by counsel reasonably satisfactory to the indemnified party or parties; provided, that the indemnified party or parties shall be entitled at any time, -------- at its or their own cost and expense (which expense shall not be recoverable from the indemnifying party unless the indemnifying party is not adequately representing or, because of a conflict of interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding brought against it and to be represented by attorneys of its or their own choosing. If the indemnified party or parties elects to participate in such defense, such party or parties will cooperate with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both indemnifying party in the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense conduct of such action within a reasonable time; thendefense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense consent of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basisindemnifying party. No Indemnifying PartyThe indemnifying party, in the defense of any such demand, claim or lawsuitlitigation, will shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement without which does not include as an unconditional term thereof the consent of giving by the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one claimant or more legal defenses available plaintiff to such Indemnified Party which are different indemnified party or parties of a full and complete release from or all liability in addition respect to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurelitigation.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except Except as otherwise provided in the next sentenceherein, the Indemnifying Party shall have the optionmay elect to compromise or defend, at its sole cost such Indemnifying Party's own expense and expenseby such Indemnifying Party's own counsel (which counsel shall be reasonably satis- factory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to retain counsel for compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indem- nifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend any such demandagainst the Third Party Claim, claim or lawsuitfails to notify the Indemnified Party of its election to do so as herein provided, provided that counsel who will conduct or otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice to any of its rights as against the Indemnifying Party), compro- mise or defend such proceeding Third Party Claim (including until such defense is assumed by the Indemnifying Party) and (ii) the costs and ex- penses of the Indemnified Party incurred in connection there- with shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any impleaded partiesThird Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (x) include both there is a conflict of interest between the Indemnifying Party and the Indemnified Party, representation Party in the conduct of both parties by the same counsel would be inappropriate due defense of such Third Party Claim or (y) there are specific defenses available to actual the Indemnified Party which are different from or potential differing interests between them, and additional to those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own counsel at direct the sole cost and expense defense of such Third Party Claim with the participation of the Indemnifying Party. In such an event, which costs the Indemnifying Party shall pay the reasonable fees and expenses shall be disbursements of counsel of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnify- ing Party nor the Indemnified Party may settle or compromise any claim (however, if the sole settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any Indemnifying Party may settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party) over the objection of the other; pro- vided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party. If In any event, except as otherwise provided herein, the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by and the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenmay each participate, at the election of the Indemnified Partyits own expense, the Indemnifying Party will not have the right to continue in the defense of such demand, claim or lawsuit on behalf of such Indemnified Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaim. In the event that If the Indemnifying Party shall fail chooses to respond within ten days after receipt of the Noticedefend any claim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any per- sonnel or any books, records or other documents within its con- trol that are reasonably necessary or appropriate for such party to indemnificationde- fense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
Appears in 1 contract
Defense. In If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to subparagraph 13(a) or 13(b) from an Indemnitor, the event any Person or entity not Indemnitee shall promptly give a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes Notice to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware Indemnitor of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldProceeding. The Indemnified Party shall have the rightIndemnitor shall, at its own expense, have the opportunity to participate in be represented by counsel of its choosing and to assume and conduct the defense of any suitsuch Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, action after such opportunity, the Indemnitor or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) its counsel does not assume the named parties to defense of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified PartyProceeding, representation of both parties it shall be bound by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing results obtained by the Indemnifying PartyIndemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within ten (10) days of having given Notice to the Indemnitor of any such Proceeding, or (iii) the Indemnifying Party has Indemnitor shall be deemed to have elected not in fact employed counsel to assume the defense of such action within a reasonable time; thenProceeding, and in such event the Indemnified Party shall Indemnitee will have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any conduct such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail Indemnitor does elect to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct assume the defense of such demandProceeding, claim the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it at no cost to the Indemnitor, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that the Indemnitee will have the right to compromise or lawsuit, as it may in its sole discretion deem proper, at settle such Proceeding only with the sole cost and expense prior written consent of the Indemnifying Party, Indemnitor which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In If the event any Person manufacture, sale or entity not a party to use of Licensed Products under this Agreement by THERAGENEX, its Affiliates, Sublicensees, manufacturers, distributors or customers results in any claim, suit or proceeding for patent infringement solely against THEREGENEX and/or its Affiliates, THERAGENEX shall make a demand or promptly notify ADVENTRX thereof in writing, setting forth the facts of such claim or file or threaten in reasonable detail. As between the parties to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party THERAGENEX shall have the option, at its sole cost first and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightprimary right and responsibility, at its own expenseexpense and after consultation with ADVENTRX, to participate in defend and control the defense of any suitsuch claim, action suit or proceeding brought against it with respect by counsel of its own choice, which counsel shall be reasonably acceptable to ADVENTRX. If ADVENTRX, and not THERAGENEX, or ADVENTRX in addition to THERAGENIX, is named as a party to such claim, suit or proceeding, ADVENTRX shall tender its defense to THERAGENEX in writing, and THERAGENEX shall defend ADVENTRX in such claim, suit or proceeding, at THERAGENEX’s own expense and through counsel of its own choice, which indemnification may counsel shall be sought hereunderreasonably acceptable to ADVENTRX; provided, however, if that ADVENTRX may, at its election and expense, actively participate in the planning and conduct of such claim, suit or proceeding and THERAGENEX shall not, without the express prior written consent of ADVENTRX (a) make any substantive decision regarding strategy related to such claim, suit or proceeding or (b) settle such claim, suit or proceeding. In connection with such claim, suit or proceeding, in no event shall either Party enter into any agreement with any Third Party, with respect to the ADVENTRX Patent Rights, that (x) contemplates payment or other action by the other Party (y) has a material adverse effect on the other Party’s business or (z) makes any admission regarding (i) wrongdoing on the named parties to any such proceeding (including any impleaded parties) include both part of the Indemnifying Party and the Indemnified other Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment invalidity, unenforceability or absence of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense infringement of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying PartyADVENTRX Patent Rights, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement each case without the prior written consent of the Indemnified other Party. If The Parties shall cooperate with each other in connection with any Indemnified Party will have been advised by counsel chosen by it that there may be one such claim, suit or more legal defenses available proceeding and shall keep each other reasonably informed of all material developments in connection with any such claim, suit or proceeding (including furnishing a copy of each communication relating to such Indemnified Party which are different from claim, suit or proceeding). It is understood that the terms of this Section 6.3 shall in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the no way limit ADVENTRX’s right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified receive indemnification under Article 10 below in connection with any Third-Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may Claims described in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureSection 10.1(b).
Appears in 1 contract
Defense. In the event Promptly after receipt by an Indemnified Person of notice of any Person claim or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense commencement of any suit, action or proceeding brought against it by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such claim, demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, if (i) that the named parties Indemnitor shall not be required to any such proceeding (including any impleaded parties) include both pay the Indemnifying Party fees and the Indemnified Party, representation disbursements of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained more than one separate counsel for the all Indemnified PartyPersons in any jurisdiction in any single action, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Partysuit or proceeding. For any claim, demand, action, suit or (iii) the Indemnifying Party has not in fact employed counsel to assume proceeding the defense of such action within a reasonable time; thenwhich the Indemnitor shall assume, the Indemnified Party Person shall have the right to participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the sole cost and expense Indemnitor's control of such claim, demand, action, suit or proceeding. The Indemnitor shall not, without the prior written consent of the Indemnifying PartyIndemnified Person, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim settle or lawsuit, will compromise or consent to the entry of any judgment in any pending or enter into any settlement without the consent threatened claim, action, suit or proceeding in respect of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there which indemnification may be one sought hereunder unless such settlement, compromise or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf consent shall include an unconditional release of such Indemnified Party Person from all liability arising out of such claim, demand, action, suit or proceeding and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by would not prohibit, restrict or impair the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may Person from engaging in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureany business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pharmaceutical Resources Inc)
Defense. In the event any Person or entity not a party to this Agreement (a) Each Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of any allegations it receives from a Third Party that the demandExploitation of the Compound or Licensed Product in the Field in the Licensed Territory or any embodiment of any technology or intellectual property licensed by the other Party under this Agreement infringes the intellectual property rights of such Third Party. Such notice shall be provided promptly, but in no event after more than [***] following receipt of such allegations. Such written notice shall include a copy of any summons or complaint (or the equivalent thereof) received regarding the foregoing. Thereafter, the Parties shall promptly meet to consider the claim or lawsuit. Within ten days after written notice by assertion and the Indemnified Party (appropriate course of action and may, if appropriate, agree on and enter into a “common interest agreement” wherein the "Notice") Parties agree to an Indemnifying Party their shared, mutual interest in the outcome of such demandpotential dispute. Each Party shall assert and not waive the joint defense privilege with respect to all communications between the Parties.
(b) As between the Parties, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party ▇▇▇ shall have the optionfirst right, but not the obligation to control and be solely responsible for the defense of any such suit against ▇▇▇, at its Zai’s sole cost and expense; provided, however, ▇▇▇ shall not enter into any compromise or settlement relating to retain counsel for such suit that (i) admits the Indemnified Party invalidity or unenforceability of any Licensed Patents; or (ii) requires abandonment of any Licensed Patents; or (iii) contemplates payment or other action by Karuna or has a material adverse effect on Karuna’s business, in all cases ((i) through (iii)), without obtaining the prior written consent of Karuna (which consent shall not be unreasonably delayed, withheld or conditioned).
(c) If ▇▇▇ decides not to defend any bring such demandlegal action subject to its first right, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party it shall so inform ▇▇▇▇▇▇ promptly and ▇▇▇▇▇▇ shall have the right, but not the obligation, to bring and control any such legal action in connection with such infringement in the Licensed Territory at its own expense, to participate in the defense of any suit, action or proceeding brought against expense as it with respect to which indemnification may be sought hereunderreasonably determines appropriate; provided, however, if Karuna shall not enter into any compromise or settlement relating to such suit that (i) admits the named parties to invalidity or unenforceability of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual Licensed Patents; or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment requires abandonment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, any Licensed Patents; or (iii) contemplates payment or other action by ▇▇▇ or has a material adverse effect on Zai’s business, in all cases ((i) through (iii)), without obtaining the Indemnifying prior written consent of Zai (which consent shall not be unreasonably delayed, withheld or conditioned).
(d) Upon the defending Party’s request and at the defending Party’s expense, the non-defending Party has shall provide reasonable assistance to the defending Party for such defense and shall join such suit if deemed a necessary party. If the non-defending Party does not in fact employed counsel to assume join such suit, the defense defending Party shall keep the non-defending Party reasonably informed of the status of such action within a reasonable time; then, the Indemnified suit. The non-defending Party shall have be entitled to attend any substantive meetings, hearings, or other proceedings related to such suit. The defending Party shall provide the right non-defending Party with copies of all pleadings and other documents to retain its own counsel at be filed with the sole cost court reasonably in advance and expense shall consider in good faith reasonable and timely input from the non-defending Party during the course of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basissuit. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.[***] = CERTAIN CONFIDENTIAL INFORMATION OMITTED
Appears in 1 contract
Sources: License Agreement (Zai Lab LTD)
Defense. In If the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability facts pertaining to an indemnification loss arise out of the claim of a third party (other than Parent and its Affiliates, on the one hand and Shareholder and his Affiliates, on the other, whichever is entitled to indemnification for such matter) and indemnification is available by virtue of the circumstances of the indemnification loss, the Indemnifying Party has the right, to be exercised by delivering written notice to the Indemnified Party within thirty (30) days of receipt of a Required Notice, to assume and control the defense or the prosecution thereof, including the employment of counsel or accountants, at its own expense. The assumption of the defense of an indemnification claim by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnified Party in respect of matters embraced such indemnification claim, nor shall it constitute a waiver by the indemnity Indemnifying Party of any defenses it may assert against the Indemnified Party’s claim for indemnification If the Indemnifying Party assumes the defense of any third party claim or litigation, the obligations of the Indemnifying Party under this Agreement, or Agreement shall include taking all steps necessary in the event that a potential Lossinvestigation, damage defense or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware settlement of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by litigation (including the retention of legal counsel) and holding the Indemnified Party (the "Notice") to an Indemnifying Party harmless from and against any and all losses caused by or arising out of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be settlement approved by the Indemnified Party whose approval will not unreasonably be withheldor any judgment in connection with such claim or litigation. The Indemnified Indemnifying Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Partynot, in the defense of any such demand, claim or lawsuitlitigation, will consent to entry of any judgment (except with the written consent of the Indemnified Party), or enter into any settlement without (except with the written consent of the Indemnified Party. If ): (a) that does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party a complete release from, all liability in respect of such claim or litigation; or (b) the effect of which is to permit any injunction, declaratory judgment, other order or other equitable relief to be entered, directly or indirectly, against any Indemnified Party. The Indemnifying Party will have been advised by shall permit the Indemnified Party to participate in such defense or settlement through counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, with the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained borne by the Indemnified Party to undertake the defenseParty. In the event that Whether or not the Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel cooperate in good faith and conduct in a reasonable manner in the defense of or prosecution thereof and shall furnish such demandrecords, claim or lawsuitmaterials, information, witnesses and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as it may be reasonably requested in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureconnection therewith.
Appears in 1 contract
Defense. In (a) Promptly after the event receipt by any Person or entity not a party person entitled to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect indemnification under Section 9.2 and 9.3 herein of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention notice of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual claim or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment commencement of counsel by any action or proceeding, such Indemnified Party has been authorized in writing by party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 and 9.3 herein (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or (iii) the commencement of such action or proceeding and shall permit the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action within or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a reasonable time; thenconflict of interest between it and the
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the Indemnified obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall have direct and control the right defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to retain its own counsel at entry of any judgment, except with the sole cost written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and expense reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which costs and expenses consent shall not be paid by unreasonably withheld. If no settlement of the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partylitigation is made, the Indemnifying Party will not have shall promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to continue such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense of against such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt other whereby written notice of the Notice, claim has been made and delivered within the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense period of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights applicable statute of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurelimitations.
Appears in 1 contract
Defense. In The Indemnifying Party shall have the event right to direct, through counsel of its own choosing, the defense or settlement of any Person action or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunderClaims; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both that the Indemnifying Party and shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, representation regardless of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themterms of such settlement, and if the Indemnifying Party has not retained separate counsel for disputes its liability with respect to the Indemnified Party, (ii) the employment of counsel by such Indemnified Third Party has been authorized in writing by the Indemnifying Party, or (iii) Claim. If the Indemnifying Party has not in fact employed counsel elects to assume the defense of any such action within claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a reasonable time; thenresult of a settlement, the Indemnified Party shall have the right to retain its own counsel direct, at the Indemnifying Party's sole cost and expense expense, through counsel of its own choosing, the Indemnifying Partydefense or settlement of any such action or proceeding; provided, which costs and expenses shall be paid by however, that if the Indemnifying Indemnified Party on a current basis. No Indemnifying Party, in assumes the defense of any such demand, claim or lawsuitproceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, will then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be unreasonably withheld) to entry the settlement or assume or reassume the defense of any judgment such claim or enter into any settlement without proceeding. Notwithstanding the consent foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party. If any Indemnified 's defense pursuant to this Section 10.3(b), and the indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified shall reimburse the Indemnifying Party which are different from or in addition to those which have been asserted full for all costs and expenses incurred by the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue promptly. The parties shall cooperate in the defense of such demand, claim or lawsuit on behalf of such Indemnified all Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaims. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct connection with the defense of such demandany Third Party Claim, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses each party shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except make available to the extent party controlling such defense any books, records or other documents within its control that are reasonably requested in the Indemnifying Party's defense course of the action is actually prejudiced by or necessary or appropriate for such failuredefense.
Appears in 1 contract
Defense. In (a) If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party within thirty (30) days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentence, the Indemnifying Party shall have the option, employment of counsel or accountants at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) that during the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and interim the Indemnified Party, representation of both parties by Party shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the same counsel would be inappropriate due to actual or potential differing interests between them, Loss; provided further that the reasonable costs and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel expenses incurred by such Indemnified Party has been authorized in writing by the Indemnifying Party, or protecting against further damage will be considered a Loss.
(iiib) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the The Indemnified Party shall have the right to retain its own participate in such defense and to employ counsel at separate from counsel employed by the sole cost Indemnity Obligor in any such action and expense of to participate therein, but the Indemnifying Party, which costs fees and expenses of such counsel shall be paid by the Indemnifying Party on not be considered a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of Loss and shall be at the Indemnified Party. If any Indemnified Party will have been advised by ’s own expense unless (A) the counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted selected by the Indemnifying Party and counsel retained by the Indemnifying Party declines Indemnity Obligor shall be unwilling or unable to assert those defenses, then, at the election of represent the Indemnified Party, or (B) a legal conflict of interest exists between the Indemnifying Party will not have Indemnity Obligor and the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling that joint representation would be inappropriate, or (C) a court of competent jurisdiction determines that the Indemnity Obligor failed or is failing to vigorously prosecute or defend such Indemnified Party on a current basis for claims, in each of which cases the reasonable fees and expenses of any separate counsel retained engaged by the Indemnified Party shall also be a Loss for which indemnity is provided by the Indemnity Obligor.
(c) Whether or not the Indemnity Obligor chooses so to undertake defend or prosecute such claim, all the defenseparties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. If the Indemnity Obligor assumes the defense or prosecution of such claim, the Indemnity Obligor shall have the right to settle the claim if such settlement involves only money damages; provided that the Indemnity Obligor shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim if, as a result of such settlement, injunctive or other equitable relief will be imposed against the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from all liabilities and obligations with respect to such claim, without prejudice. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent, which consent shall not be unreasonably withheld or delayed. In the event that and to the Indemnifying extent of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall fail be subrogated to respond within ten days after receipt and shall stand in the place of the Notice, Indemnified Party to the extent of such payment as to any events or circumstances in respect of which the Indemnified Party may retain counsel have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim, and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs reasonable fees and expenses shall be paid incurred by the Indemnifying Indemnified Party on in providing such cooperation shall also be a current basis. Failure to provide Notice shall not limit Loss for which indemnity is provided by the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureIndemnity Obligor.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitExcept as provided in Section 11.6, which demand, claim or lawsuit may result in liability to if within 10 calendar days after an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes Indemnitee provides Notice to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of any Third Party Claim, the Indemnitee receives Notice from the Indemnifying Party that such demand, claim or lawsuit, except as provided in Indemnifying Party has elected to assume the next sentencedefense of such Third Party Claim, the Indemnifying Party shall have will not be liable for any legal expenses subsequently incurred by the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct Indemnitee in connection with the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldthereof. The Indemnified Party Indemnitee shall have the right, at its own expense, be entitled to participate in the defense of any suit, action or proceeding brought against it with respect such Third Party Claim and to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate employ counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel purpose at the sole cost and expense of Indemnitee. Each Party shall in good faith consult with the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying other Party on a current basis. No Indemnifying Party, in regarding the defense of any such demand, claim or lawsuit, will consent Third Party Claim upon the other Party’s reasonable request from time to entry of any judgment or enter into any settlement without time. Without the prior written consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified PartyIndemnitee, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and enter into any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses settlement of any counsel retained by Third Party Claim which would lead to liability or create any financial or other obligation on the Indemnified part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder or which would impose any injunctive or other equitable remedy on the Indemnitee. If a firm offer is made to settle a Third Party Claim without leading to undertake liability or the defense. In creation of a financial or other obligation on the event that part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder (or which would not impose any injunctive or other equitable remedy on the Indemnitee) and the Indemnifying Party shall fail desires to respond accept and agree to such offer, the Indemnifying Party will give Notice to the Indemnitee to that effect. If the Indemnitee fails to consent to such firm offer within ten 10 calendar days after its receipt of the such Notice, the Indemnified Indemnitee may continue to contest or defend such Third Party may retain counsel and conduct Claim and, in such event, the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense maximum liability of the Indemnifying PartyParty to such Third Party Claim will be the amount of such settlement offer, which plus reasonable costs and expenses shall be paid or incurred by the Indemnifying Party on a current basis. Failure Indemnitee up to provide Notice shall not limit the rights date of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurenotice.
Appears in 1 contract
Defense. If any Indemnified Party learns of any matter which may give rise to a claim for indemnification against an Indemnifying Party under this Article XI, then the Indemnified Party shall notify the Indemnifying Party thereof promptly and in any event within five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is materially prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense thereof, defend against the matter in any manner it reasonably may deem appropriate. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified the Indemnifying Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by notifies the Indemnified Party (after the "Notice"date the Indemnified Party has given notice of the matter) to an that the Indemnifying Party is assuming the defense of such demand, claim or lawsuit, except as provided in the next sentencematter, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldParty. The Notwithstanding the foregoing, the Indemnified Party shall have the right, at right to employ its own expensecounsel in any such case, to participate in but the defense fees and expenses of any suit, action or proceeding brought against it with respect to which indemnification may such counsel shall be sought hereunder; provided, however, if at the expense of the Indemnified Party unless (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of such counsel by such Indemnified Party has shall have been authorized in writing by the Indemnifying Party, or (iiiii) the Indemnifying Party has shall not in fact have employed counsel to assume fully and properly take charge of the defense of such action within a reasonable time; then, time after notice of commencement of the action or (iii) the Indemnified Party shall have reasonably concluded that there are defenses available to it that are different from or additional to those available to one or more of the Indemnifying Parties (in which case the Indemnifying Parties shall not have the right to retain its own counsel direct the defense of such action on behalf of the Indemnified Party with respect to such different defenses), in any of which events such fees and expenses shall be borne by the Indemnifying Party. Assumption of the defense of any matter by the Indemnifying Party shall not prejudice the right of the Indemnifying Party to claim at a later date that such third party action is not a proper matter for indemnification pursuant to this Article XI. The Indemnified Party shall not consent to the sole cost and expense entry of a judgment or enter into any settlement with respect to any matter which may give rise to a claim for indemnification without the written consent of the Indemnifying Party, which costs and expenses consent shall not be paid by the unreasonably withheld or delayed. The Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will shall not consent to the entry of a judgment with respect to any judgment matter which may give rise to a claim for indemnification or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Damages with respect thereto, without the written consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may (not to be one unreasonably withheld or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failuredelayed).
Appears in 1 contract
Sources: Purchase Agreement (NHP Inc)
Defense. In the event any Person or entity not a party to this Agreement third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "“Notice"”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, ; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's ’s defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage the Indemnitor may assume the defense or expense comes the prosecution thereof by prompt written notice to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party Indemnitee and the Indemnified affected Protected Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) including the employment of counsel by such Indemnified Party has been authorized in writing by or accountants, at its cost and expense. The Indemnitee and the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified affected Protected Party shall have the right to retain its own employ counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid separate from counsel employed by the Indemnifying Party on a current basis. No Indemnifying Party, Indemnitor in the defense of any such demandaction and to participate therein, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without but the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained employed by the Indemnified Party to undertake Indemnitee and the defense. In the event that the Indemnifying affected Protected Party shall fail to respond be at their expense. The Indemnitor shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the Indemnitor does not assume the defense or prosecution of a claim as provided above within ten thirty (30) days after receipt of notice thereof from the NoticeIndemnitee or any Protected Party, the Indemnified Indemnitee and the affected Protected Party may retain counsel settle such claim without the Indemnitor's consent. The Indemnitor shall not agree to a settlement of any claim which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of any Protected Party without the Indemnitee's and conduct the affected Protected Party's prior written consent. Whether or not the Indemnitor does choose to so defend or prosecute such claim, all the parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such demandrecords, claim or lawsuitinformation and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as it may be reasonably requested in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses connection therewith. The Indemnitor shall be paid by the Indemnifying Party on a current basis. Failure subrogated to provide Notice shall not limit the all rights and remedies of such party to indemnificationany Protected Party, except to the extent the Indemnifying they apply against another Protected Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Transworld Healthcare Inc)
Defense. In the event connection with any Person claim giving rise to indemnity ------- under this Agreement resulting from or entity arising out of any claim or legal proceeding by a party who is not a 28 party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct expense shall assume the defense of any such demand, claim or lawsuit will be legal proceeding with legal counsel approved by the Indemnified Party whose approval will not unreasonably be withheldin its reasonable discretion. The Indemnified Party shall have be entitled to participate in (but not control) the rightdefense of any such action, with its own counsel and at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themthem (other than differing interests associated with an Indemnifying Party's obligation to indemnify), and the Indemnifying Party has not retained separate counsel for the Indemnified Party, or (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No If after notification thereof, the Indemnifying Party, in Party does not assume the defense of any such demand, claim or lawsuit, will consent litigation resulting from a claim within a timely manner so as not to entry of any judgment or enter into any settlement without prejudice the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election rights of the Indemnified Party, the Indemnified Party may defend against such claim or litigation, in such manner as it may deem reasonably appropriate, including, but not limited to, settling such claim or litigation, after giving notice of the same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate (within the exercise of reasonable discretion). The liability of the Indemnifying Party will not have the right to continue the defense of shall be conclusively established by such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained settlement by the Indemnified Party to undertake the defense. In extent entered into on the event that basis of its reasonable discretion, the Indemnifying Party shall fail amount of such liability to respond within ten days after receipt of include, but not be limited to, both the Noticesettlement consideration and the reasonable costs and expenses, including attorneys' fees, incurred by the Indemnified Party may retain counsel and conduct the defense of in effecting such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failuresettlement.
Appears in 1 contract
Defense. In If a claim by a third party (a "Third Party Claim") is made against an SFI Indemnitee arising out of a matter for which the event any Person SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the Preferred Shareholders may elect to assume the defense or entity not the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a party commenced lawsuit or proceeding) after receipt of a Notice of Claim to this Agreement shall make a demand or claim or file or threaten undertake to file or continue any lawsuitconduct and control, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect through counsel of matters embraced their own choosing as designated by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, Shareholder Representative and at its their sole cost risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to retain participate in such settlement or defense through counsel for the Indemnified Party to defend any such demand, claim or lawsuitchosen by it, provided that the fees and expenses of such counsel who will conduct shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such demandclaim if as a result thereof the SFI Indemnitee would become subject to injunctive, claim declaratory or lawsuit will other equitable relief or the business of the SFI Indemnitee would be approved by materially adversely affected in any manner. Whether or not the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall have the right, at its own expense, to participate cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Preferred Shareholders shall not be liable for any settlement of any suitsuch claim effected without their prior written consent, action or proceeding brought against it with respect to which indemnification may shall not be sought hereunder; provided, howeverunreasonably withheld. However, if (i) the named parties Preferred Shareholders, fail to any defend such proceeding (including any impleaded parties) include both claim within the Indemnifying Party time period necessary to preserve the rights and defense of the Indemnified PartySFI Indemnitee, representation the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, such claim on behalf of and the Indemnifying Party has not retained separate counsel for the Indemnified Partyaccount and risk of the Preferred Shareholders, (ii) subject to the employment right of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel Preferred Shareholders to assume the defense of such action claim at any time within the 30-day time period after receiving Notice of Claim . If a reasonable time; thenclaim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Indemnified Party Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall have the right be entitled at their sole expense to retain its own counsel at the sole cost and expense do any of the Indemnifying Partyfollowing: (i) procure for SFI, which costs Clarus CSA, Inc. and expenses shall be paid by their licensees the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the unrestricted right to continue using the defense of Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such demand, claim or lawsuit on behalf of proceeding in the foregoing sentence provided that such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained compliance by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice SFI shall not limit the rights Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such party claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to indemnificationpay any claims made under Article IX of the Merger Agreement or this Agreement, except and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Indemnifying Party's defense Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the action is actually prejudiced by such failuremaximum liability amounts shall require SFI's prior written consent.
Appears in 1 contract
Defense. (i) In the event any Person or entity not case of a third party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitclaim, which demand, claim or lawsuit the Indemnifying Party may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or participate in the event that a potential Lossdefense thereof and, damage or expense comes if it so chooses and irrevocably acknowledges its obligation to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the "Notice") to an Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such demandconflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or lawsuit(y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, except or of its of their senior management, in its or their capacity as provided such (which issues are a fundamental element of the claim) then the Indemnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the next sentencedefense at its own expense. In the case of a third party claim, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by and irrevocably acknowledges its obligation to indemnify the Indemnified Party whose approval will not unreasonably be withheldtherefor. The Indemnified Indemnifying Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis liable for the reasonable fees and expenses of any counsel retained employed by the Indemnified Party to undertake the defense. In the event that for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall fail endeavor in good faith to respond settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within ten 20 days after receipt the date it receives notice of such claim from the NoticeIndemnified Party, the Indemnified Party may retain counsel and conduct the defense of defend against such demand, claim or lawsuit, litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in its sole discretion deem properthis Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out-of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.
(ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by but the Indemnifying Party on a current basis. Failure to provide Notice will not be bound by any compromise or settlement effected without its consent (which consent shall not limit be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the rights of such party to indemnificationdefense in good faith and in a commercially reasonable manner, except to and shall inform the extent Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy's insurance rights are not lost, subject to the action condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is actually prejudiced covered by such failureSection 5.18 shall remain subject in all respect to the terms of Section 5.18.
Appears in 1 contract
Defense. In If the event any Person or entity not facts relating to a party to this Agreement shall make Loss arise out a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Third Party in respect of matters embraced by the indemnity under this AgreementClaim, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentenceemployment of counsel or accountants, reasonably satisfactory to the Indemnifying Party shall have the optionIndemnified Party, at its sole cost and expense; provided, to retain counsel for however, that during the interim the Indemnified Party shall use its best efforts to defend any such demand, claim take all action (not including settlement) reasonably necessary to protect against further damage or lawsuit, provided that counsel who will conduct loss with respect to the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldLoss. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if unless (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (iia) the employment of counsel thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to such Indemnified Party it which are different from or in addition additional to those which have been asserted available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnifying Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and counsel retained by shall stand in the Indemnifying place of the Indemnified Party declines as to assert those defenses, then, at any events or circumstances in respect of which the election Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in 44 connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Venture Catalyst Inc)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an The Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expenseupon written notice to the Indemnified Party within thirty (30) days of receipt of timely notice from the Indemnified Party in respect of a claim by any Person other than the Parties arising out of or involving a Loss by such Person against an Indemnified Party (other than a Tax Claim asserted against any Landos Indemnified Party) (a “Third Party Claim”), to participate in assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. L▇▇▇▇▇ shall control the defense of any suit, action or proceeding Tax Claim brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both Landos Indemnified Party. If the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has does not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel expressly elect to assume the defense of such action Third Party Claim within a reasonable time; thenthe time period and otherwise in accordance with the first sentence of this Section 5.4(b), the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim. The party not controlling the defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such party unless, in the written opinion of outside counsel to the Indemnified Party, it is advisable for the Indemnified Party to be represented by separate counsel due to actual or potential conflicts of interest, in which case the Indemnified Party shall have the right to retain its own employ counsel at to represent it and in that event the sole cost and expense of the Indemnifying Party, which costs reasonable documented out-of-pocket fees and expenses of such separate counsel shall be paid by the Indemnifying Party. The party not controlling the Third Party on a current basis. No Indemnifying Claim (the “Non Controlling Party”) shall reasonably cooperate with the party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Controlling Party all witnesses, pertinent records, materials and information in the defense Non Controlling Party’s possession or under the Non Controlling Party’s control relating thereto as is reasonably required by the Controlling Party; provided, however, that such actions and cooperation by the Non Controlling Party will not unduly disrupt the operations of the Non Controlling Party’s business or cause the Non Controlling Party to waive any such demandstatutory or common law privileges, claim breach any confidentiality obligations owed to Third Parties or lawsuitotherwise cause any confidential information of the Non Controlling Party to become public. The Controlling Party shall not, will without the prior written consent of the Non Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment or with respect to such Third Party Claim; provided, however, that, if an Indemnifying Party is proposing to enter into any settlement without or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may shall not be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by required if (i) the Indemnifying Party agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment and counsel retained such settlement, compromise or judgment includes no admission of liability by or other obligation on the Indemnifying Party declines to assert those defenses, then, at the election part of the Indemnified Party, and (ii) such settlement compromise or judgment includes an unconditional written release by the Indemnifying Party will not have the right to continue the defense claimant or plaintiff of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense from all liability in respect of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Third Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureClaim.
Appears in 1 contract
Sources: Asset Purchase and Redemption Agreement (Landos Biopharma, Inc.)
Defense. In If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a third party to this Agreement shall make a demand or claim or file or threaten to file or continue (including, without limitation, any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementdissenting stockholder), or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 30 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentence, the Indemnifying Party shall have the option, employment of counsel or accountants at its sole cost and expense; provided, to retain counsel for however, that during the interim the Indemnified Party shall use its best efforts to defend any such demand, claim take all action (not including settlement) reasonably necessary to protect against further damage or lawsuit, provided that counsel who will conduct loss with respect to the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldLoss. The Indemnified Party shall have the right, at its own expense, right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in therein, but the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained by shall be at the Indemnified Party's own expense unless counsel to the Indemnified Party to undertake reasonably concludes that there would be a conflict of interest if counsel selected by the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, Indemnity Obligor represented the Indemnified Party may retain in the matter. In such event, the fees of such separate counsel and conduct shall constitute a Loss. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim or lawsuit, as it may in effected without its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyprior written consent, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In The Indemnifying Party shall have the event right to direct, through counsel of its own choosing, the defense or settlement of any Person action or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunderClaims; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both that the Indemnifying Party and shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, representation regardless of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themterms of such settlement, and if the Indemnifying Party has not retained separate counsel for disputes its liability with respect to the Indemnified Party, (ii) the employment of counsel by such Indemnified Third Party has been authorized in writing by the Indemnifying Party, or (iii) Claim. If the Indemnifying Party has not in fact employed counsel elects to assume the defense of any such action within claim or proceed ing, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or, after commencing or undertaking any such defense, fails to prosecute or withdraws from such defense other than as a reasonable time; thenresult of a settlement, the Indemnified Party shall have the right to retain its own counsel direct, at the Indemnifying Party's sole cost and expense expense, through counsel of its own choosing, the Indemnifying Partydefense or settlement of any such action or proceeding; provided, which costs and expenses shall be paid by however, that if the Indemnifying Indemnified Party on a current basis. No Indemnifying Party, in assumes the defense of any such demand, claim or lawsuitproceeding pursuant to this Section 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, will then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in and consent (which consent shall not be unreasonably withheld) to entry the settlement or assume or reassume the defense of any judgment such claim or enter into any settlement without proceeding. Notwithstanding the consent foregoing provisions of this Section 10.3(b), if the Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party shall not be required to bear the costs and expenses of the Indemnified Party. If any 's defense pursuant to this Section 10.3(b), and the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified shall reimburse the Indemnifying Party which are different from or in addition to those which have been asserted full for all costs and expenses incurred by the Indemnifying Party in con nection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and counsel retained by promptly. The parties shall cooperate in the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue defense shall pursue such defense diligently and promptly. The parties shall cooperate in 48 57 the defense of such demand, claim or lawsuit on behalf of such Indemnified all Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaims. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct connection with the defense of any Third Party Claim, each party shall make available to the party controlling such demanddefense any books, claim records or lawsuitother documents within its control that are reasonably requested in the course of or necessary or appropriate for such defense, as it may in its sole discretion deem proper, at provided appropriate arrangements are made to safeguard the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights confidentiality of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurematerials.
Appears in 1 contract
Defense. In (a) If the event facts relating to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentence, the Indemnifying Party shall have the option, employment of counsel or accountants at its sole cost and expense; provided, to retain counsel for however, that during the interim the Indemnified Party shall use its best efforts to defend take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the Loss. If notice is given to the Indemnity Obligor of the commencement of any such demandProceeding and the indemnifying party does not, claim or lawsuitwithin 15 days after the Indemnified Party's notice is given, provided that counsel who will conduct give notice to the Indemnified Party of its election to assume the defense of such demandProceeding, claim or lawsuit the indemnifying party will be approved bound by any determination made in such Proceeding or any compromise or settlement effected by the Indemnified Party whose approval will not unreasonably be withheldParty. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if unless (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (iia) the employment of counsel by such Indemnified Party thereof has been specifically authorized in writing by the Indemnifying PartyIndemnity Obligor, or (iiib) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to such Indemnified Party it which are different from or in addition additional to those which have been asserted available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action or employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Except as previously set forth in this Section 13.04, the Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnifying Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a third party claim, the Indemnity Obligor shall be subrogated to and counsel retained by shall stand in the Indemnifying place of the Indemnified Party declines as to assert those defenses, then, at any events or circumstances in respect of which the election Indemnified Party may have any right or claim against such third party relating to such Indemnified Matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party including any compromise or settlement of such claims without the consent of the Indemnified Party.
(b) Notwithstanding the foregoing, the Indemnifying if an Indemnified Party will not have the right to continue the defense determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of such demand, claim or lawsuit on behalf of monetary damages for which such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party would be entitled to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Noticeindemnification under this Agreement, the Indemnified Party may retain counsel and conduct the defense of such demandmay, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except notice to the extent indemnifying party, assume the Indemnifying Party's defense exclusive right to defend, compromise, or settle such Proceeding, but the indemnifying party will not be bound by any determination of the action is actually prejudiced by such failurea Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld).
Appears in 1 contract
Defense. In If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage the indemnifying party may assume the defense or expense comes the prosecution thereof by written notice to the attention of any Party in respect of matters embraced by the indemnity under this Agreementparty seeking indemnification, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by or accountants, in each case reasonably satisfactory to such Indemnified Party has been authorized in writing by the Indemnifying Partyparty, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party at their cost and expense. The party seeking indemnification shall have the right to retain its own employ counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid separate from counsel employed by the Indemnifying Party on a current basis. No Indemnifying Party, indemnifying party in the defense of any such demandaction and to participate therein, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without but the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained employed by the Indemnified Party party seeking indemnification shall be at its expense. The indemnifying party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld; provided that if the indemnifying party does not assume the defense or prosecution of a claim within 30 days of notice thereof, the party seeking indemnification may settle such claim without the indemnifying party's consent. The Company Holder shall not agree to undertake a settlement of any claim which provides for any relief other than the defense. In payment of monetary damages or which could have a material precedential impact or effect on the event that the Indemnifying Party shall fail to respond within ten days after receipt business or financial condition of the NoticeCompany and the Subsidiary without Parent's prior written consent. Whether or not the indemnifying party does choose to so defend or prosecute such claim, all the Indemnified Party may retain counsel and conduct parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such demandrecords, claim or lawsuitinformation and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as it may be reasonably requested in its sole discretion deem proper, at the sole cost connection therewith. The indemnifying party shall be subrogated to all rights and expense remedies of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to seeking indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event Promptly after receipt by an Indemnified Person of notice of any Person claim or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense commencement of any suit, action or proceeding brought against it by any third party with respect to which indemnification may be sought hereunder, such Indemnified Person shall notify in writing the Indemnitor of such claim or demand or the commencement of such suit, action or proceeding, but failure so to notify the Indemnitor shall not relieve the Indemnitor from any liability which the Indemnitor may have hereunder or otherwise, unless the Indemnitor shall be actually prejudiced by such failure. If the Indemnitor shall so elect, the Indemnitor shall assume the defense of such claim, demand, action, suit or proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall pay the fees and disbursements of such counsel. In the event, however, that such Indemnified Person shall reasonably determine that having common counsel would present such counsel with a conflict of interest or alternative defenses shall be available to an Indemnified Person or if the Indemnitor shall fail to assume the defense of the claim, demand, action, suit or proceeding in a timely manner, then such Indemnified Person may employ separate counsel to represent or defend such Person against any such claim, demand, action, suit or proceeding and the Indemnitor shall pay the reasonable fees and disbursements of such counsel; provided, however, if (i) that the named parties Indemnitor shall not be required to any such proceeding (including any impleaded parties) include both pay the Indemnifying Party fees and the Indemnified Party, representation disbursements of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained more than one separate counsel for the all Indemnified PartyPersons in any jurisdiction in any single action, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Partysuit or proceeding. For any claim, demand, action, suit or (iii) the Indemnifying Party has not in fact employed counsel to assume proceeding the defense of such action within a reasonable time; thenwhich the Indemnitor shall assume, the Indemnified Party Person shall have the right to participate therein and to retain its own counsel at such Indemnified Person's own expense (except as otherwise specifically provided in this Section 12.4), so long as such participation does not interfere with the sole cost and expense Indemnitor's control of such claim, demand, action, suit or proceeding. The Indemnitor shall not, without the prior written consent of the Indemnifying PartyIndemnified Person, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim settle or lawsuit, will compromise or consent to the entry of any judgment in any pending or enter into any settlement without the consent threatened claim, action, suit or proceeding in respect of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there which indemnification may be one sought hereunder unless such settlement, compromise or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf consent shall include an unconditional release of such Indemnified Party Person from all liability arising out of such xxx claim, demand, action, suit or proceeding and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by would not prohibit, restrict or impair the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may Person from engaging in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureany business.
Appears in 1 contract
Defense. In the event any Person or entity not If a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitthird‑party action, which demandsuit, claim or lawsuit demand (a “Third Party Claim”) is involved, then, upon receipt of the Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the Indemnitee and at its sole risk and expense, the good faith settlement or defense of such claim, and the Indemnitee shall cooperate with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the Indemnitee and the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may result settle any such claim without the prior consent of the Indemnitee if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to participate in liability to an Indemnified Party in respect of matters embraced such settlement or defense through counsel chosen by the indemnity Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification 58 therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the event that a potential Loss, damage or expense comes to the attention good faith opinion of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware counsel of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it party concludes that there may be one or more legal are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Indemnified Third Party which are different Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the defense, including by furnishing all available documentary or in addition to those which have been asserted other evidence as is reasonably requested by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureother party.
Appears in 1 contract
Sources: Stock Purchase Agreement
Defense. In Subject to the event any Person or entity not a party to limitations set forth in this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitSection 11.5(b), which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that of a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceClaim, the Indemnifying Party shall have the optionright (exercisable by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the Third Party Claim) to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at its sole the Indemnifying Party’s own cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to retain counsel for the Indemnified Party to defend any such demandin respect thereof, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved and (ii) if requested by the Indemnified Party whose approval will not unreasonably be withheld. The Party, has provided evidence reasonably satisfactory to the Indemnified Party shall have of the rightIndemnifying Party’s financial ability to pay any Loss and Expense resulting from the Third Party Claim; provided, that the Indemnified Party may participate, through separate counsel chosen by it and at its own cost and expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, howeverthe Third Party Claim. Notwithstanding the foregoing, if (iA) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party shall not have given notice of its election to conduct and control the defense of the Third Party Claim within such 10-day period, (B) the Indemnifying Party shall fail to conduct such defense diligently, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or (D) the Third Party Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain control the defense, compromise or settlement of the Third Party Claim with counsel of its own counsel choice at the Indemnifying Party’s sole cost and expense expense. In any event, from and after delivery of a Claim Notice, the Indemnifying PartyParty and the Indemnified Party shall, which costs and expenses shall cause their respective affiliates and representatives to, cooperate fully in connection with the defense or prosecution of any Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be paid reasonably requested by the Indemnifying Party on a current basisor the Indemnified Party in connection therewith. No Indemnifying PartyIn addition, in the party controlling the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without Third Party Claim shall keep the consent non-controlling party advised of the Indemnified Party. If status thereof and shall consider in good faith any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted recommendations made by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person non-controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurewith respect thereto.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hub International LTD)
Defense. In (a) If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in the event that if there is any claim against a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced third party available by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing virtue of the demand, claim or lawsuit. Within ten days after written notice by circumstances of the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceLoss, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, right to participate in the defense of any suitin, action or proceeding brought against it with respect by giving written notice to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation to elect to assume the defense of, or take full responsibility for, such audit, investigation, action, claim or proceeding, including the employment of both parties counsel or accountants, in each case reasonably satisfactory to the Indemnified Party, and the payment of the fees and disbursements of such counsel. If the Indemnifying Party declines or fails to assume the defense of, or take full responsibility for, the audit, investigation, action, claim or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within ten (10) Business Days following receipt by the same Indemnifying Party of notice of the claim, then the Indemnified Party may employ counsel would be inappropriate due to actual represent or potential differing interests between themdefend it in any such audit, investigation, action, claim or proceeding and the Indemnifying Party has not retained separate will pay the reasonable fees and disbursements of such counsel as incurred. In any audit, investigation, action, claim or proceeding for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) which the Indemnifying Party has not in fact employed counsel to assume assumed the defense of such action within a reasonable time; thendefense, the Indemnified Party shall have the right to participate in such matter and to retain its own counsel at the sole cost and Indemnified Party's own expense of the Indemnifying Party, which costs and expenses shall be paid by (except that the Indemnifying Party on shall be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a current basisconflict of interest). No The Indemnifying Party, Party shall at all times use reasonable efforts to inform the Indemnified Party of the status of the defense of any matter the defense of which the Indemnifying Party has assumed and to cooperate in good faith with the Indemnified Party with respect to the defense of any such demand, matter.
(b) No Indemnified Party may settle or compromise any claim or lawsuit, will consent to the entry of any judgment or enter into any settlement with respect to which indemnification is being sought hereunder without the consent prior written consent, which shall not be unreasonably delayed or withheld, of the Indemnified Indemnifying Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the No Indemnifying Party and counsel retained by may settle or compromise any claim or consent to the Indemnifying Party declines entry of any judgment with respect to assert those defenseswhich indemnification is being sought hereunder without the prior written consent, thenwhich shall not be unreasonably delayed or withheld, at the election of the Indemnified Party, unless such settlement, compromise or consent (A) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, and (B) does not impose an injunction or other equitable relief upon the Indemnified Party.
(c) Whether or not the Indemnifying Party will not have the right chooses to continue defend a claim, all Parties shall cooperate in the defense of thereof and shall furnish such demandrecords, claim or lawsuit on behalf of information and testimony, and attend such Indemnified Party conferences, discovery proceedings, hearings, trials and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseappeals, as may be reasonably requested in connection therewith. In the event that the The Indemnifying Party shall fail be subrogated to respond within ten days after receipt all rights and remedies of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Securities Purchase Agreement (Corporacion Durango Sa De Cv/)
Defense. In the event any Person person or entity not a party to this Agreement shall make a demand or claim or claim, file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Lossloss, damage or expense comes to the attention of any Party party in respect of matters embraced by the indemnity under this Agreement, then the Party party receiving notice or becoming aware of such event shall promptly notify the other Party in writing party or parties of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party Party, to defend any such demand, claim or lawsuit, provided that counsel who will shall conduct the defense of such demand, claim or lawsuit will shall be approved by the Indemnified Party whose approval will shall not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (ia) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themthem (other than differing interests associated with an Indemnifying Party's obligation to indemnify), and the Indemnifying Party has not retained separate counsel for the Indemnified Party, or (iib) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iiic) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If ; provided, however, that if a firm written offer is made by the third party to settle any claim, which involves only the payment of cash (United States dollars) and the claimant provides to the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available a general release in a form reasonably acceptable to such the Indemnified Party which are different from or in addition to those which have been asserted by all liability, and the Indemnifying Party proposes to accept (and counsel retained by pay in full the Indemnifying Party declines to assert those defenses, then, at the election amount of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of ) such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by settlement but the Indemnified Party refuses to undertake the defense. In the event that consent to such settlement, then: (i) the Indemnifying Party shall fail to respond within ten days after receipt of the Noticebe excused from, and the Indemnified Party may retain counsel and conduct shall be solely responsible for, all further defense costs related to such third-party claim; (ii) the defense of maximum reimbursement amount relating to such demand, third-party claim or lawsuit, as it may in its sole discretion deem proper, at shall be the sole cost and expense amount of the Indemnifying Party, which proposed settlement (plus any defense costs and expenses shall be not paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except prior to the extent the Indemnifying Party's defense rejection of the action settlement) if the amount thereafter recovered from the Indemnified Party on such claim is actually prejudiced by such failure.greater that the amount of the proposed settlement; and;
Appears in 1 contract
Defense. In If the event any Person facts relating to a Loss or entity not Company Loss arise out of a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Third Party in respect of matters embraced by the indemnity under this AgreementClaim, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss or Company Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor shall, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentenceemployment of counsel or accountants, reasonably satisfactory to the Indemnifying Party shall have the optionIndemnified Party, at its sole cost and expense; PROVIDED, to retain counsel for HOWEVER, that during the interim the Indemnified Party shall use its best efforts to defend any such demand, claim take all action (not including settlement) reasonably necessary to protect against further damage or lawsuit, provided that counsel who will conduct loss with respect to the defense of such demand, claim Loss or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldCompany Loss. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if unless (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (iia) the employment of counsel thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to such Indemnified Party it which are different from or in addition additional to those which have been asserted available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnifying Indemnity Obligor to the Indemnified Party in connection with any Loss or Company Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and counsel retained by shall stand in the Indemnifying place of the Indemnified Party declines as to assert those defenses, then, at any events or circumstances in respect of which the election Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to Promptly after receipt by an Indemnified Party of notice of a possible action, suit, proceeding or claim referred to in Section 7.01 hereof, such Indemnified Party, if a claim in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes thereof is to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, be made against the Indemnifying Party under such Section, shall have provide the option, at its sole cost and expense, to retain counsel for the Indemnified Indemnifying Party to defend any such demand, claim or lawsuit, with written particulars thereof; provided that counsel who will conduct failure to provide the defense Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any liability which it might have on account of the indemnity provided for in this Article Seven except insofar as such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldfailure shall prejudice such Indemnifying Party. The Indemnified Party shall have also provide to the rightIndemnifying Party copies of all relevant documentation and, unless the Indemnifying Party assumes the defence thereof, shall keep such Indemnifying Party advised of the progress thereof and will discuss with the Indemnifying Party all significant actions proposed. An Indemnifying Party shall be entitled, at its own expense, to participate in (and, to the defense extent that it may wish, to assume) the defence of any such action, suit, action proceeding or proceeding brought against it with respect to which indemnification may claim but such defence shall be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and conducted by counsel of good standing approved by the Indemnified Party, representation of both parties by the same counsel would such approval not to be inappropriate due to actual or potential differing interests between them, and unreasonably withheld. Upon the Indemnifying Party has not retained separate counsel for notifying the Indemnified PartyParty of its election so to assume the defence and retaining such counsel, (ii) the employment of counsel by such Indemnifying Party shall not be liable to the Indemnified Party has been authorized for any legal or other expenses subsequently incurred by it in writing connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, or (iii) it shall, through the Indemnifying course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party has not in fact employed counsel to assume advised of the defense of such action within a reasonable time; then, progress thereof and shall discuss with the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basisall significant actions proposed. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or Party shall enter into any settlement without the consent of the Indemnified Party, but such consent shall not be unreasonably withheld. If such defence is not assumed by the Indemnifying Party, the Indemnifying Party shall not be liable for any settlement made without its consent, but such consent shall not be unreasonably withheld. Notwithstanding the foregoing, an Indemnified Party will shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any such action, suit, proceeding or claim if (a) the employment of such counsel has been authorized by the Indemnifying Party in connection with such defence; or (b) counsel retained by the Indemnifying Party or the Indemnified Party shall have advised by counsel chosen by it the Indemnified Party that there may be one or more legal defenses defences available to such Indemnified Party it which are different from or in addition to those which have been asserted by available to the Indemnifying Party (in which event and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partythat extent, the Indemnifying Party will shall not have the right to continue assume or direct the defense of such demand, claim or lawsuit defence on behalf of such the Indemnified Party) or that there may be a conflict of interest between the Indemnifying Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that Party; or (c) the Indemnifying Party shall fail to respond not have assumed such defence and employed counsel therefor within ten days a reasonable time after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense receiving notice of such demandaction, claim suit, proceeding or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureclaim.
Appears in 1 contract
Defense. In connection with any claim by a third party which may give rise to indemnity hereunder (a “Third-Party Claim”), the event Indemnifying Party may assume the defense of any Person or entity not a party such Third Party Claim, upon reasonably prompt written notice to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitthe Indemnified Party, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced defense shall be prosecuted by the indemnity under this AgreementIndemnifying Party to a final conclusion or settlement in accordance with the terms hereof; provided, or in however, that the event that a potential Loss, damage or expense comes failure to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (or any delay in notifying the "Notice") to an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder. The Indemnifying Party shall diligently prosecute the defense of a Third-Party Claim, including by assuming control of the defense of such demand, claim or lawsuit, except as provided in Third-Party Claim and appointing counsel reasonably acceptable to the next sentenceIndemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not have the option, at its sole cost and expense, right to retain counsel for the Indemnified Party to defend any such demand, claim assume or lawsuit, provided that counsel who will conduct the defense continue control of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, Third-Party Claim if such Third-Party Claim (i) the named parties seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations or regulatory matters, (iii) results in, or could reasonably be expected to any such proceeding (including any impleaded parties) include both result in, under applicable standards of professional conduct, a conflict of interest between the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due Party with respect to actual or potential differing interests between them, and the Indemnifying such Third-Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying PartyClaim, or (iiiiv) involves a claim that, if adversely determined, would be reasonably expected to establish a precedent, custom, or practice materially adverse to the continuing business interests or prospects of the Indemnified Party or the operations of the Company (each, an “Exception Claim”). The Indemnifying Party has will not in fact employed counsel consent to the entry of and judgment or enter into any settlement with respect to, or cease to defend, any claim by a third party with the prior written consent, which such consent (A) may be provided at Indemnified Party’s sole discretion with respect to a claim that involves criminal or quasi-criminal allegations, regulatory matters, or involves a claim that, if adversely determined, would be reasonably expected to establish a precedent, custom, or practice materially adverse to the continuing business interests or prospects of the Indemnified Party or the operations of the Company, and (B) shall not be unreasonably withheld, conditioned, or delayed with respect to all other claims by a third party. In the event that (i) Indemnifying Party does not assume the defense of a Third-Party Claim, (i) the Indemnified Party does not diligently prosecute the defense of any Third-Party Claim as set forth in this Section 8(d)(ii) or such action within a reasonable time; thenThird-Party Claim is, or at any time becomes, an Exception Claim, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying may defend against such Third-Party on a current basis. No Indemnifying Party, Claim in the defense of any such demand, claim or lawsuit, will manner as it may deem reasonably appropriate (including consent to the entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available with respect to such Indemnified Third-Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem properClaim), at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party Representative shall have the right, at its option (subject to the limitations set forth in Section 9.2(c) below) and at its own expense, by written notice to Parent (which notice shall not constitute an admission or agreement that indemnification is owed to the Parent Indemnitees hereunder), to assume the entire control of, subject to the right of Parent to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to Parent to be the lead counsel in connection with such defense. If the Representative is permitted and elects to assume the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereundera Third Party Claim: (i) the Representative shall diligently and in good faith defend such Third Party Claim and shall keep Parent reasonably informed of the status of such defense; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party that Parent shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Partyapprove any settlement, which costs approval will not be unreasonably withheld, delayed or conditioned; and expenses (ii) Parent and Merger Sub shall be paid by cooperate fully in all respects with the Indemnifying Party on a current basisRepresentative in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel, and Parent and Merger Sub shall as promptly as practicable make available to the Representative all pertinent information and documents under its control. No Indemnifying PartyNotwithstanding the foregoing and anything to the contrary herein, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party Representative provides prior written notice to Parent of any settlement or compromise of, or offer to settle or compromise, any third-party claim and Parent or Merger Sub withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to a Parent Indemnitee hereunder, in no event shall fail indemnification be provided to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense Parent Indemnitees in respect of such demandmatter in an amount greater than the monetary amount contained in such settlement or compromise of, claim or lawsuitoffer to settle or compromise, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such any third-party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureclaim.
Appears in 1 contract
Defense. In (a) If the event facts pertaining to a Loss arise out of the claim of any Person third party or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementgovernmental authority, or in if there is any claim against a third party or a governmental authority available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party within twenty (20) business days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume and control the defense or lawsuitthe prosecution thereof, except as provided in including through the next sentenceemployment of counsel, the Indemnifying Party shall have the option, accountants and environmental and other consultants and contractors at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, right to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in therein, but the defense fees and expenses of any suit, action or proceeding brought against it with respect to which indemnification may such counsel shall be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and at the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by ’s own expense. In such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenevent, the Indemnified Party Indemnity Obligor shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Partysettle or resolve any such claim by a third party or governmental authority; providedhowever, which costs and expenses shall be paid that any such settlement or resolution contemplated by the Indemnifying Indemnity Obligor that involves any action by the Indemnified Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement shall not be concluded without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election prior written approval of the Indemnified Party, which approval shall not be unreasonably withheld.
(b) Whether or not the Indemnifying Party will not have Indemnity Obligor chooses so to defend or prosecute such claim, all the right to continue parties hereto shall cooperate in the defense of or prosecution thereof and shall furnish such demandrecords, claim or lawsuit on behalf of information, and testimony and shall attend such Indemnified Party conferences, discovery proceedings and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by trials as may be reasonably requested in connection therewith. Where the Indemnified Party or the Indemnity Obligor is defending and controlling any claim, they shall select counsel, contractors, experts and consultants of recognized standing and competence to undertake take all steps necessary in the defenseinvestigation, defense or settlement thereof and shall at all times diligently and promptly pursue the resolution thereof. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct The party conducting the defense thereof shall at all times act as if all Losses relating to any such claim are for its own account and shall act in good faith and with reasonable prudence to minimize Losses therefrom. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim or lawsuit, as it may in effected without its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyprior written consent, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. (i) In the event any Person or entity not case of a third party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitclaim, which demand, claim or lawsuit the Indemnifying Party may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or participate in the event that a potential Lossdefense thereof and, damage or expense comes if it so chooses and irrevocably acknowledges its obligation to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, how- ever, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the "Notice") to an Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litiga- tion, and as a result of such demandconflict, the Indemnifying Party’s incentive to defend such claim could reasonably be expected to be materially compromised, or lawsuit(y) the claim raises serious issues regarding the integrity or moral character of the Indemni- fied Party or any of its Affiliates, except or of its of their senior management, in its or their capacity as provided such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party’s rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the In- demnifiable Claim may participate in the next sentencedefense at its own expense. In the case of a third party claim, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by and irrevocably acknowledges its obligation to indem- nify the Indemnified Party whose approval will not unreasonably be withheldtherefor. The Indemnified Indemnifying Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis liable for the reasonable fees and expenses of any counsel retained employed by the Indemnified Party to undertake the defense. In the event that for any period during which the Indemnifying Party shall fail has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to respond within ten days after receipt the Indemnity Claim or it is determined by a court of competent juris- diction that it is obligated hereunder to provide such indemnification. If the Notice, Indemni- fying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party may retain counsel and conduct against a third party claim), the defense of parties shall endeavor in good faith to settle such demand, dispute. The Indemnifying Party shall not settle or compromise a third party claim or lawsuitlegal pro- ceeding without the prior written consent of the Indemnified Party, as which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Sub- stances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it may in its sole discretion deem proper, at is entitled to indemnification hereunder without the sole cost and expense prior written consent of the Indemnifying Party, which costs and expenses consent shall not be paid by unreasonably withheld, conditioned or delayed. If the Indemnifying Party on a current basis. Failure to provide Notice shall does not limit assume the rights de- fense of any third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such party to indemnificationclaim from the Indemnified Party, except the Indemnified Party may defend against such claim or litigation in such manner as it may deem ap- propriate, including settling such claim or litigation, after giving notice to the extent Indem- nifying Party, on such terms as the Indemnified Party may deem appropriate. Not- withstanding anything in this Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the par- ties, jointly determine who will control the defense and settlement of any such In- demnifiable Claim and how such defense and settlement will be handled, (C) ▇▇▇▇▇▇- ate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties’ respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemni- fiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.
(ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party's , assume the exclusive right to defend, compromise or settle such claim, at the expense of the In- demnifying Party, but the Indemnifying Party will not be bound by any compromise or settlement effected without its consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the defense in good faith and in a commercially reasonable manner, and shall inform the Indem- nifying Party periodically, or upon the Indemnifying Party’s reasonable request, of the status of the litigation. The Indemnified Party’s choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably with- held or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC cur- rently maintained by Dynegy, it is necessary to permit Dynegy’s insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy’s insurance rights are not lost, subject to the action condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is actually prejudiced covered by such failureSection 5.18 shall remain subject in all respect to the terms of Section 5.18.
Appears in 1 contract
Sources: Stock Purchase Agreement
Defense. (a) Each Party shall notify the other in writing of any allegations it receives from a Third Party that the Development or Commercialization of the Product or use of the Licensed Technology infringes the intellectual properly rights of such Third Party. Such notice shall be provided promptly, but in no event after more than fo1ty five (45) days, following receipt of such allegations.
(b) In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential LossParty receives notice that it or any of its Affiliates have been individually named as a defendant in a legal proceeding by a Third Party alleging infringement of a Third Party's patents or other intellectual property right as a result of the Development or Commercialization of the Product or use of the Licensed Technology, damage or expense comes to the attention of any such Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly immediately notify the other Party in writing of the demand, claim or lawsuit. Within ten and in no event notify such other Party later than forty five (45) days after the receipt of such notice. Such written notice by shall include a copy of any summons or complaint (or the Indemnified equivalent thereof) received regarding the foregoing. Each Party (shall asse1i and not waive the "Notice") joint defense privilege with respect to an Indemnifying Party of all communications between the Parties reasonably the subject thereof. In such demand, claim or lawsuit, except as provided in the next sentenceevent, the Indemnifying Party Parties shall have the option, at its sole cost and expense, agree how best to retain counsel for the Indemnified Party to defend any such demand, claim mitigate or lawsuit, provided that counsel who will conduct control the defense of any such demandlegal proceeding; provided however, that EDESA shall assume the primary responsibility for the conduct of the defense of any such claim or lawsuit will be approved by that is specific to the Indemnified Party whose approval will not unreasonably be withheldField, at EDESA's expense, and YISSUM shall assume the primary responsibility for the conduct of the defense of any other such claim, at YlSSUM's expense. The Indemnified Party Notwithstanding the foregoing, YISSUM may forego assuming the primary responsibility for the conduct of the defense of any such claim outside the Field, in which case EDESA shall have the right, but not the obligation, to assume such primary responsibility at its own expense. The Party that does not assume primary responsibility for the conduct of the defense shall have the right, but not the obligation, to participate and be separately represented in any such suit at its sole option and at its own expense. Each Party shall reasonably cooperate with the Party conducting the defense of the claim. If a Party or any suit, action of its Affiliates have been individually named as a defendant in a legal proceeding relating to the alleged infringement of a Third Pa1ty's patents or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) other intellectual property right as a result of the named parties to any such proceeding (including any impleaded parties) include both Development or Commercialization of the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenProduct, the Indemnified other Party shall have the right be allowed to retain join in such action, at its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureexpense.
Appears in 1 contract
Defense. In If the event any Person or entity not facts relating to a party to this Agreement shall make Loss arise out a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Third Party in respect of matters embraced by the indemnity under this AgreementClaim, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor shall, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentenceemployment of counsel or accountants, reasonably satisfactory to the Indemnifying Party shall have the optionIndemnified Party, at its sole cost and expense; provided, to retain counsel for however, that during the interim the Indemnified Party shall use its best efforts to defend any such demand, claim take all action (not including settlement) reasonably necessary to protect against further damage or lawsuit, provided that counsel who will conduct loss with respect to the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldLoss. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, unless (a) the employment thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been advised by counsel reasonably satisfactory to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification Indemnity Obligor that there may be sought hereunder; provided, however, if (i) one or more legal defenses available to it which are different from or additional to those available to the named parties Indemnity Obligor and counsel to any such proceeding (including any impleaded parties) include both each of the Indemnifying Indemnified Party and the Indemnified Party, Indemnity Obligor shall have advised such parties that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, them or (iic) the employment of counsel by such Indemnified Party Indemnity Obligor has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel failed to assume the defense of such action within a reasonable time; thenaction. Whether or not the Indemnity Obligor defends or prosecutes such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall have be subrogated to and shall stand in the right to retain its own counsel at the sole cost and expense place of the Indemnifying Party, Indemnified Party as to any events or circumstances in respect of which costs and expenses the Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall be paid by cooperate with the Indemnifying Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event any Person or entity not a The party to this Agreement provide indemnification (the “Indemnifying Party”) shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes (subject to the attention of any Party limitations set forth in respect of matters embraced subsection 7.2(c) below and subject to the following sentence), at its own expense, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by to the Indemnified Party, assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the "Notice") defense of the Third Party Claim as to an which such Notice of Claim has been given. All expenses, fees, and costs associated with the defense of such Third Party Claim by the Representative on behalf of the Stockholders as Indemnifying Party shall be first paid from the Escrowed Cash and then (should such amount be fully extinguished) from the proceeds from the sale of the Escrowed Shares. If the Indemnifying Party is permitted to assume the defense of a Third Party Claim:
(i) the Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep Indemnifying Party reasonably informed of the status of such demanddefense; provided, claim or lawsuithowever, except as provided that in the next sentencecase of any settlement providing for remedies other than monetary damages for which indemnification is provided, the Indemnifying Party shall have the optionright to approve the settlement, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose which approval will not be unreasonably be withheld. The , conditioned, or delayed;
(ii) Indemnified Party shall have cooperate fully in all respects with the rightIndemnifying Party in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel (which counsel shall be reasonably acceptable to the Indemnified Party), and Indemnified Party shall make available to the Indemnifying Party all pertinent information and documents under its control; and
(iii) for purposes of clarification, to the extent that Stockholders are required to act as an Indemnifying Party pursuant to this Article VII, at its own expensesuch time after the Escrowed Cash is fully exhausted, the Representative shall be entitled on their behalf, without reference to and regardless of any lock ups or restrictions that would otherwise be applicable to the Escrowed Shares (and subject to applicable securities laws), to participate sell or pledge such Escrowed Shares at any time during the Escrow Period to assist in the defense of and/or to pay any suitLosses. The parties agree to take all steps necessary, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation execution of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Partysubsequent documentation, in the defense of any such demand, claim or lawsuit, will consent order to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available enable Representative to such Indemnified Party which are different from or act in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureaccordance with this Article VII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except Except as otherwise provided in the next sentenceherein, the Indemnifying Party shall have the optionmay elect to compromise or defend, at its sole cost such Indemnifying Party’s own expense and expenseby such Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to retain counsel for compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend any such demandagainst the third Party Claim, claim or lawsuitfails to notify the Indemnified Party of its election to do so as herein provided, provided that counsel who will conduct or otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by (A) the Indemnified Party whose approval will not unreasonably may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (B) the costs and expenses of the Indemnified Party incurred in connection therewith shall be withheldindemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the rightwritten advice of its counsel, at its own expense, to participate in the defense that (x) there is a conflict of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both interest between the Indemnifying Party and the Indemnified Party, representation Party in the conduct of both parties by the same counsel would be inappropriate due defense of such Third Party Claim or (y) there are specific defenses available to actual the Indemnified Party which are different from or potential differing interests between them, and additional to those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel at of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and provided further, that if the sole cost and expense settlement relief payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any may settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If In any event, except as otherwise provided herein, the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by and the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenmay each participate, at the election of the Indemnified Partyits own expense, the Indemnifying Party will not have the right to continue in the defense of such demand, claim or lawsuit on behalf of such Indemnified Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaim. In the event that If the Indemnifying Party shall fail chooses to respond within ten days after receipt of the Noticedefend any claim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such party to indemnificationdefense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
Appears in 1 contract
Sources: Agreement and Plan of Share Exchange (Cardinal Financial Corp)
Defense. In the event connection with any Person claim giving rise to indemnity hereunder resulting from or entity arising out of any claim or legal proceeding by a person who is not a party to this Agreement shall make a demand or Agreement, the Indemnifying Party at its sole cost and expense and with counsel reasonably satisfactory to the Indemnified Party may, upon written notice to the Indemnified Party, assume the defense of any such claim or file or threaten legal proceeding if (a) the Indemnifying Party acknowledges to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an the Indemnified Party in writing, within fifteen (15) days after receipt of notice from the Indemnified Party, its obligations to indemnify the Indemnified Party with respect to all elements of matters embraced by such claim, (b) the indemnity under this AgreementIndemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against such third-party claim and fulfill its indemnification obligations hereunder, (c) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, and (d) settlement or an adverse judgment of the third-party claim is not, in the good faith judgment of the Indemnified Party, likely to establish a pattern or practice adverse to the continuing business interests of the Indemnified Party. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its counsel and at its own expense; provided, however, that if there are one or more legal defenses available to the Indemnified Party that conflict with those available to the Indemnifying Party, or in if the event that a potential Loss, damage or expense comes Indemnifying Party fails to take reasonable steps necessary to diligently defend the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party claim after receiving notice or becoming aware from the Indemnified Party that it believes the Indemnifying Party has failed to do so, the Indemnified Party may assume the defense of such event shall promptly notify claim; provided, further, that the other Indemnified Party in writing may not settle such claim without the prior written consent of the demandIndemnifying Party, claim or lawsuitwhich consent may not be unreasonably withheld. Within ten days after written notice If the Indemnified Party assumes the defense of the claim, the Indemnifying Party shall reimburse the Indemnified Party for the reasonable fees and expenses of counsels retained by the Indemnified Party (and the "Notice") to an Indemnifying Party shall be entitled to participate in (but not control) the defense of such demandclaim, with its counsel and at its own expense. If the Indemnifying Party thereafter seeks to question the manner in which the Indemnified Party defended such third-party claim or lawsuit, except as provided in the next sentenceamount or nature of any such settlement, the Indemnifying Party shall have the option, at its sole cost and expense, burden to retain counsel for prove by a preponderance of the evidence that the Indemnified Party to did not defend any or settle such demand, third-party claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldin a reasonably prudent manner. The Indemnified Party shall have the rightparties agree to render, at its own expensewithout compensation, to participate each other such assistance as they may reasonably require of each other in order to insure the proper and adequate defense of any suitaction, action suit or proceeding brought against it with respect proceeding, whether or not subject to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event If any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to such action is brought against an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceindemnified party, the Indemnifying indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in and to assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, by giving written notice to the indemnified party within thirty (30) days of its receipt of written notice of such action from the indemnified party, and after such notice from the indemnifying Party to such indemnified party of the indemnifying Party’s election to assume the defense thereof, the indemnifying Party shall not be liable to such indemnified party for any suit, action legal or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties other expenses subsequently incurred by the same counsel would be inappropriate due to actual or potential differing interests between them, and latter in connection with the Indemnifying defense thereof unless the indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel failed PURCHASE AND SALE AGREEMENT -49- to assume the defense of such action within a reasonable time; thenclaim and to employ counsel reasonably satisfactory to such indemnified party. Notwithstanding any of the foregoing to the contrary, the Indemnified Party shall have the right indemnified party will be entitled to retain select its own counsel at and assume the sole cost defense of any action brought against it if (i) the indemnified party has been advised by counsel that an actual conflict of interest exists between the indemnifying Party and expense the indemnified party in connection with the defense of such action or proceeding, (ii) such action or proceeding seeks injunctive relief with respect to the Indemnifying Partyindemnified claim or is part of a criminal proceeding or (iii) the indemnifying Party fails to select counsel reasonably satisfactory to the indemnified party, which costs and in each case, with the expenses shall of such defense to be paid by the Indemnifying indemnifying Party. As a condition to the indemnifying Party’s obligations hereunder, the indemnified party will in good faith cooperate with and assist the indemnifying Party on a current basisin the prosecution or defense of such indemnified claim at no unreasonable out of pocket expense to the indemnified party. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) without the consent of the Indemnified Party. If any Indemnified Party will have been advised indemnified party, which consent shall not be unreasonably withheld, or (b) unless such judgment or settlement includes as an unconditional term thereof the giving by counsel chosen by it that there may be one the claimant or more legal defenses available plaintiff to such Indemnified Party which are different indemnified party of a release from all liability with respect to such claim. No indemnified party shall consent to entry of any judgment or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defensesenter into any settlement of any such action, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demandwhich has been assumed by an indemnifying Party, claim or lawsuit on behalf without the consent of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice consent shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In the event case any Person or entity not a party to this Agreement shall make a claim, demand or claim deficiency (a "CLAIM") is asserted or file any action is commenced or threaten notice is given of any administrative or other proceeding against the person(s) and/or entities seeking indemnity under this SECTION 11 (hereinafter referred to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party as the "INDEMNITEE") in respect of matters embraced by the which such indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware is sought hereunder (each and all of such event persons and entities being hereinafter referred to as the "INDEMNITOR") pursuant to this SECTION 11, Indemnitee shall promptly notify the other Party give prompt notice thereof in writing of the demand, claim or lawsuitto Indemnitor. Within ten thirty (30) days after receipt of such notice (or prior to such earlier date as any answer in any administrative or other proceeding is due), Indemnitor may give Indemnitee written notice by the Indemnified Party (the "Notice") of its election to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, Claim at its own expense. If Indemnitor has given Indemnitee such notice of election to conduct the defense, Indemnitee shall nevertheless have the right to participate in the defense of any suitthereof, action or proceeding brought against it with respect to which indemnification may but such participation shall be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has solely at its expense. If Indemnitor shall not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized notify Indemnitee in writing by (within the Indemnifying Party, or (iiitime hereinabove provided) the Indemnifying Party has not in fact employed counsel of its election to assume conduct the defense of such action within a reasonable time; thenClaim, the Indemnified Party shall have the right to retain its own counsel Indemnitee may (but need not) conduct (at the sole cost and expense of Indemnitor) the Indemnifying Partydefense of any Claim. The party assuming the defense of a Claim hereunder (the "DEFENDING PARTY") shall notify the other party of its intention to settle, which costs compromise or satisfy any such Claim and expenses may make such settlement, compromise or satisfaction unless such other party (the "ASSUMING PARTY") shall be paid by notify the Indemnifying Defending Party on a current basis. No Indemnifying Partyin writing (within thirty (30) days after receipt of such notice of intention to settle, in compromise or satisfy) of its election to assume (at its sole expense) the defense of any such demand, claim or lawsuit, will consent Claim and promptly thereafter take appropriate action to entry of implement such defense. The Assuming Party shall indemnify the Defending Party and hold it harmless against any judgment or enter into any settlement without the consent losses in excess of the Indemnified Partyamount of losses the Defending Party would have incurred if the proposed settlement had been agreed upon. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to Indemnitee shall cooperate with Indemnitor in such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thendefense, at the election Indemnitor's cost, and Indemnitee shall provide reasonable assistance of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of Indemnitee's employees in connection with such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Manufacturing Agreement (Gumtech International Inc \Ut\)
Defense. In Except as otherwise provided herein, the event any Person Indemnifying ------- Party may elect to compromise or entity not a party to this Agreement defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes be reasonably satisfactory to the attention of Indemnified Party), any Third Party in respect of matters embraced by Claim. If the indemnity under this AgreementIndemnifying Party elects to compromise or defend such Third Party Claim, then the Party it shall, within 30 days after receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demandThird Party Claim (10 days if the Indemnifying Party states in such notice that prompt action is required), claim or lawsuit. Within ten days after written notice by notify the Indemnified Party (of its intent to do so, and the "Notice") to an Indemnified Party shall cooperate, at the expense of the Indemnifying Party of such demandParty, claim or lawsuit, except as provided in the next sentencecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party shall have elects not to compromise or defend against the optionthird Party Claim, at its sole cost and expense, or fails to retain counsel for notify the Indemnified Party of its election to defend any such demanddo so as herein provided, claim or lawsuit, provided that counsel who will conduct otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any such proceeding Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (including any impleaded partiesx) include both there is a conflict of interest between the Indemnifying Party and the Indemnified Party, representation Party in the conduct of both parties by the same counsel would be inappropriate due defense of such Third Party Claim or (y) there are specific defenses available to actual the Indemnified Party which are different from or potential differing interests between them, and additional to those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel at the sole cost and expense of the Indemnifying PartyParty and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, which costs neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim over the objection of the other, provided, however, that -------- ------- consent to settlement or compromise shall not be unreasonably withheld by the Indemnified Party and expenses shall be provided, further, that if the sole settlement relief -------- ------- payable to a Third Party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party on a current basis. No and such settlement includes an unconditional term releasing the Indemnified Party from all liability in respect of such Third Party Claim, the Indemnifying Party, in the defense of any Party may settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If In any event, except as otherwise provided herein, the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by and the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenmay each participate, at the election of the Indemnified Partyits own expense, the Indemnifying Party will not have the right to continue in the defense of such demand, claim or lawsuit on behalf of such Indemnified Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaim. In the event that If the Indemnifying Party shall fail chooses to respond within ten days after receipt of the Noticedefend any claim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such party to indemnificationdefense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
Appears in 1 contract
Defense. In the event If any Person or entity not a Proceeding referred to in Section 10.10.1 is brought against an indemnified party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes and it gives notice to the attention indemnifying party of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware commencement of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceProceeding, the Indemnifying Party shall have indemnifying party will, unless the optionclaim is a Tax Claim, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in such Proceeding and, to the defense of any suit, action or proceeding brought against extent that it with respect to which indemnification may be sought hereunder; provided, however, if wishes (unless (i) the named parties indemnifying party is also a party to any such proceeding (including any impleaded parties) include both the Indemnifying Party Proceeding and the Indemnified Party, indemnified party determines in good faith that joint representation of both parties by the same counsel would be inappropriate due to actual inappropriate, or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment indemnifying party fails to provide reasonable assurance to the indemnified party of counsel by its financial capacity to defend such Indemnified Party has been authorized in writing by the Indemnifying PartyProceeding and provide indemnification with respect to such Proceeding), or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenProceeding with counsel satisfactory to the indemnified party and, after notice from the Indemnified Party shall have indemnifying party to the right indemnified party of its election to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue assume the defense of such demandProceeding, claim the indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel or lawsuit on behalf any other expenses with respect to the defense of such Indemnified Party Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and will reimburse subject to indemnification; (ii) no compromise or settlement of such Indemnified Party and claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person controlling and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such Indemnified Party on a current basis for claims effected without its consent. If notice is given to an indemnifying party of the reasonable fees and expenses commencement of any counsel retained by Proceeding and the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond indemnifying party does not, within ten days after receipt the indemnified party’s notice is given, give notice to the indemnified party of the Notice, the Indemnified Party may retain counsel and conduct its election to assume the defense of such demandProceeding, claim the indemnifying party will be bound by any determination made in such Proceeding or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid any compromise or settlement effected by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureindemnified party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Management Network Group Inc)
Defense. In the event any Person action, suit or entity not proceeding (a "LEGAL ACTION") is brought against an indemnified party, with respect to which the indemnifying party may have liability under an indemnity agreement contained herein, the Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitindemnify under such indemnity agreement, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced be defended by the indemnity under this Agreement, indemnifying party and such defense shall include all proceedings on appeal or in for review which counsel for the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event defendant shall promptly notify the other Party in writing of the demand, claim or lawsuitdeem appropriate. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party The indemnified party shall have the option, at its sole cost right to be represented by counsel and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightaccountants, at its own expense, and shall be kept fully informed as to participate in such Legal Action at all stages thereof whether or not it is represented by its own counsel. Until the indemnifying party shall have so assumed the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying PartyLegal Action, or (iii) if the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party indemnified party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it reasonably concluded that there may are likely to be one or more legal defenses available to such Indemnified Party which the indemnified party that are different from or in addition to those available to the indemnifying party (in which have been asserted by case the Indemnifying Party and counsel retained by indemnifying party shall not be entitled to assume the Indemnifying Party declines to assert those defenses, then, at the election defense of the Indemnified Party, the Indemnifying Party will not such Legal Action but shall have the right to continue be represented by counsel and accountants, at its own expense, and shall be kept fully informed as to such Legal Action at all stages thereof whether or not represented by its own counsel), all legal or other expenses reasonably incurred by the indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the indemnified party and its attorneys and accountants all books and records of the indemnifying party relating to such Legal Action and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of any such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureLegal Action.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party Buyer or Seller in respect of matters embraced covered by the indemnity under this Agreement, then the Party party receiving notice or becoming aware of such event shall promptly notify the other Party in writing party of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an the Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will must be approved by the Indemnified Party Party, whose approval will not be unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Indemnified Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Indemnifying Party. If any Indemnified Party will have been is advised by its chosen counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenParty, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party under this subparagraph (b) to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atlantic Technology Ventures Inc)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an The Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its option (subject to the limitations set forth in Section 7.2(c) below) and at its own expense, by written notice to the Indemnified Party to assume the entire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the defense, compromise or settlement of the Third Party Claim as to which such Notice of Claim has been given, and shall be entitled to appoint a recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense. If the Indemnifying Party is permitted and elects to assume the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereundera Third Party Claim:
(i) the Indemnifying Party shall diligently and in good faith defend such Third Party Claim and shall keep the Indemnified Party reasonably informed of the status of such defense; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, that the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Partyapprove any settlement, which costs and expenses shall approval will not be paid by the Indemnifying Party on a current basis. No Indemnifying Partyunreasonably withheld, delayed or conditioned; provided, that, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail provides prior written notice to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel of any settlement or compromise of, or offer to settle or compromise, any Third Party Claim in full and conduct the defense Indemnified Party withholds its consent to such settlement or compromise then, in the event indemnification is ultimately determined to be owing to an Indemnified Party hereunder with respect to such Third Party Claim, in no event shall indemnification be provided to such Indemnified Party in respect of such demandThird Party Claim in an amount greater than the amount contained in such settlement or compromise of, claim or lawsuitoffer to settle or compromise, as it may such Third Party Claim; and
(ii) the Indemnified Party shall cooperate fully in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by all respects with the Indemnifying Party on a current basis. Failure to provide Notice in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel, and the Indemnified Party shall not limit the rights of such party to indemnification, except make available to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureParty all pertinent information and documents under its control.
Appears in 1 contract
Defense. In the event connection with any Person claim giving rise to indemnity under this Agreement resulting from or entity arising out of any claim or legal proceeding by a party who is not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct expense shall assume the defense of any such demand, claim or lawsuit will be legal proceeding with legal counsel approved by the Indemnified Party whose Party, which approval will shall not be unreasonably be withheld. The Indemnified Party shall have be entitled to participate in (but not control) the rightdefense of any such action, with its own counsel and at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and them (other than differing interests associated with the Indemnifying Party has not retained separate counsel for the Indemnified Party’s obligation to indemnify), or (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Subject to Section 6.4(a), if after notification thereof, the Indemnifying Party, in Party does not assume the defense of any such demand, claim or lawsuit, will consent litigation resulting from a claim within a timely manner so as not to entry of any judgment or enter into any settlement without prejudice the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election rights of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of defend against such demand, claim or lawsuitlitigation, in such manner as it may deem reasonably appropriate. Each party shall cooperate, and cause its respective Affiliates to cooperate, in its sole discretion deem properthe defense or prosecution of any such third party claim and shall furnish or cause to be furnished such records, at the sole cost information and expense of the Indemnifying Partytestimony, which costs and expenses shall attend such conferences, discovery proceedings, hearings, trials or appeals, as may be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurereasonably requested in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Axcelis Technologies Inc)
Defense. In the event any Person person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party party receiving notice or becoming aware of such event shall promptly notify the other Party in writing party or parties of the demand, claim or lawsuit. Within ten (10) days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party Party, to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (ia) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, or (iib) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iiic) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition additional to those available to and which have not been asserted by the Indemnifying Party and counsel retained by Party, the Indemnifying Party declines to assert those defenses, then, will not have at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten (10) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure Except as explicitly provided in this Section 9.3(b), failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In The Parties, working through the event any Person or entity not a party to this Agreement JSC, shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party cooperate to defend any such demandclaims under the strategy, claim or lawsuitterms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the case of any unresolved dispute, each Party named as a defendant in such action shall be entitled upon written notice to defend itself in such matter independently by counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, its own choice and at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, howeverthat each Party shall inform the other Party of the progress of such defense [ * ] = 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 406 of the Securities Act of 1933, as amended. and, if (i) reasonably requested by the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified other Party, representation shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of both parties any defense actions under this Section 9.6(b) shall be [ * ]. In any action pursued jointly by the same counsel would be inappropriate due to actual or potential differing interests between themParties through the JSC, and the Indemnifying non-leading Party has not retained separate counsel for shall reasonably cooperate with the Indemnified leading Party, (ii) the employment including if required to conduct such defense, furnishing a power of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified attorney. The non-leading Party shall have the right to retain its own counsel confer, through the JSC, with the leading Party in any such defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to be released from the cost-sharing obligation described above, then such Party (a “Removed Party”) shall be entitled, upon thirty (30) days prior written notice to the JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the sole cost and expense discretion of the Indemnifying continuing Party (a “Continuing Party”). Following the end of such thirty (30) day notice period, which the Continuing Party shall bear all costs and expenses for the continuation of the matter. The Removed Party shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in promptly and reasonably cooperate to support the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent efforts of the Indemnified Continuing Party. If In any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partyevent, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Removed Party shall fail forego its rights to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as separate representation in any matter from which it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurehas withdrawn.
Appears in 1 contract
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except Except as otherwise provided in the next sentenceherein, the Indemnifying Party shall have the optionmay elect to compromise or defend, at its sole cost such Indemnifying Party's own expense and expenseby such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to retain counsel for compromise or defend such Third Party Claim, it shall, within 30 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend any such demandagainst the Third Party Claim, claim or lawsuitfails to notify the Indemnified Party of its election to do so as herein provided, provided that counsel who will conduct or otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any such proceeding Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (including any impleaded partiesx) include both there is a conflict of interest between the Indemnifying Party and the Indemnified PartyParty in the conduct of the defense of such Third Party Claim, representation of both parties by or (y) there are specific defenses available to the same counsel would be inappropriate due Indemnified Party which are different from or additional to actual or potential differing interests between them, and those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own counsel at assume and direct the sole cost defense and expense compromise of such Third Party Claim insofar as it relates to the Indemnifying Indemnified Party. In such an event, which costs and expenses shall be paid by the Indemnifying Party on shall pay the reasonable fees and disbursements of counsel to the Indemnifying Party or Parties and the Indemnified Party provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one counsel for the Indemnified Parties other than local counsel. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a current basisthird party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim and the settlement or compromise includes a complete release of the other party or parties hereto) over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably withheld. No In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying PartyParty may each participate, at its own expense, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified PartyThird Party Claim. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines chooses to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and defend any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Noticeclaim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such party to indemnificationdefense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
Appears in 1 contract
Defense. In the event any Person case of a Claim involving the assertion of a claim by a third party (whether pursuant to a lawsuit or entity not other legal action or otherwise, a party “Third-Party Claim”), the Indemnifying Party may, upon written notice to this Agreement shall make a demand or claim or file or threaten the Indemnified Party, take control of the defense and investigation of such Third-Party Claim if the Indemnifying Party acknowledges to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an the Indemnified Party in respect of matters embraced by writing the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing obligation of the demand, claim or lawsuit. Within ten days after written notice by Indemnifying Party to indemnify the Indemnified Party (with respect to all elements of such Third-Party Claim. If the "Notice") to an Indemnifying Party assumes the defense of any such demand, claim or lawsuit, except as provided in the next sentenceThird-Party Claim, the Indemnifying Party shall have the option, at its sole cost and expense, select counsel reasonably acceptable to retain counsel for the Indemnified Party (and separate from counsel to defend the Indemnifying Party if there is any such demand, claim conflict or lawsuit, provided that counsel who will conduct the defense divergence of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both interest between the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due ) to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim claims or lawsuit, as it may in its sole discretion deem properlegal proceedings and, at the sole cost and expense of the Indemnifying Party, shall take all steps necessary in the defense or settlement thereof. The Indemnifying Party shall not consent to a settlement of or the entry of any judgment arising from any such Third-Party Claim without the prior written consent of the Indemnified Party (which costs and expenses consent shall not be unreasonably withheld or delayed). The Indemnified Party shall be paid by entitled to participate in (but not control) the defense of any such Third-Party Claim, with its own counsel and at its own expense; provided, however, that the Indemnified Party shall be entitled to settle any Third-Party Claim involving criminal penalties, civil fines or harm without the consent, but at the expense, of the Indemnifying Party if the Indemnifying Party shall unreasonably fail to do so after being requested to do so by the Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party that it will assume the defense of such Third-Party Claim within thirty (30) days after the Indemnifying Party receives notice of such claim from the Indemnified Party: (a) the Indemnified Party may defend against such Third-Party Claim in such manner as it may deem reasonably appropriate, provided that the Indemnified Party shall not consent to a settlement of or the entry of any judgment arising from such Third-Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed); and (b) the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. Regardless of which Party shall assume the defense of the Third-Party Claim, the Parties agree to cooperate fully with one another in connection therewith. Such cooperation shall include the providing of records and information which are relevant to such Third-Party Claim and making employees and officers available on a current basis. Failure mutually convenient basis to provide Notice shall not limit the rights additional information and explanation of such party any material provided hereunder and to indemnificationact as a witness or respond to legal process, except in each case to the extent that the Indemnifying Party's defense of the action Party being requested to provide records and information or to make employees and officers available can do so without waiving any evidentiary privileges to which it is actually prejudiced by such failureentitled.
Appears in 1 contract
Sources: Asset Purchase Agreement
Defense. In (a) Promptly after the event receipt by any Person or entity not a party person entitled to indemnification under Section 5.1 and 5.2 of this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention notice of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual claim or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment commencement of counsel by any action or proceeding, such Indemnified Party has been authorized in writing by party (the "Aggrieved Party") will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Stock Purchase Agreement - Page 10 ------------------------
Section 5.1 and 5.2 of this Agreement (the "Indemnifying Party"), give such Indemnifying Party written notice of such claim or (iii) the commencement of such action or proceeding and shall permit the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time; then, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the Indemnified obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall have direct and control the right defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to retain its own counsel at entry of any judgment, except with the sole cost written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and expense reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which costs and expenses consent shall not be paid by unreasonably withheld. If no settlement of the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partylitigation is made, the Indemnifying Party will not have shall promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to continue such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense of against such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt other whereby written notice of the Notice, claim has been made and delivered within the Indemnified Party may retain counsel and conduct one-year period following the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basisClosing Date unless otherwise provided herein. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.Stock Purchase Agreement - Page 11 ------------------------
Appears in 1 contract
Defense. In (a) Promptly after the event receipt by any Person or entity not a party person entitled to indemnification under Section 5.1 and 5.2 of this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention notice of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual claim or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment commencement of counsel by any action or proceeding, such Indemnified Party has been authorized in writing by party (the “Aggrieved Party”) will, if claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 5.1 and 5.2 of this Agreement (the “Indemnifying Party”), give such Indemnifying Party written notice of such claim or (iii) the commencement of such action or proceeding and shall permit the Indemnifying Party has not in fact employed counsel to assume the defense of any such claim or any proceeding or litigation resulting from such claim, unless the action or proceeding seeks an injunction or other similar relief against the Aggrieved Party or there is a conflict of interest between it and the Indemnifying Party in the conduct of the defense of such action. Failure by the Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time; then, but in no event more than 15 days after written notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
(b) If the Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, the Indemnified obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Aggrieved Party harmless from and against any losses, damages and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such claim or litigation provided that the Indemnifying Party shall have direct and control the right defense of such claim or litigation. The Aggrieved Party shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Indemnifying Party shall not, in the defense of such claim or any litigation resulting therefrom, consent to retain its own counsel at entry of any judgment, except with the sole cost written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
(c) If the Indemnifying Party shall not assume the defense of any such claim or litigation resulting therefrom, the Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and expense reasonably satisfactory to the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise, as incurred by the Aggrieved Party in connection with the defense against or settlement of such claim or litigation. No settlement of claim or litigation shall be made without the consent of the Indemnifying Party, which costs and expenses consent shall not be paid by unreasonably withheld. If no settlement of the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partylitigation is made, the Indemnifying Party will not have shall promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to continue such claim or in such litigation and of all expenses, legal or otherwise, as incurred by the Aggrieved Party in the defense of against such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt other whereby written notice of the Notice, claim has been made and delivered within the Indemnified Party may retain counsel and conduct one-year period following the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureClosing Date unless otherwise provided herein.
Appears in 1 contract
Defense. In the event Except as set forth in Section 11.5(d) hereof, if any Person action, suit or entity proceeding is commenced, or any claim or demand is asserted, by a third party not Affiliated with any party hereto against a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party hereto (the "Indemnitee") in respect of matters embraced by which the indemnity Indemnitee proposes to demand indemnification under this AgreementSection 11.1 or 11.2 above, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party party from which indemnification is sought (the "NoticeIndemnitor") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the optionright to assume the entire control thereof (including the selection of counsel reasonably acceptable to the Indemnitee), subject to the right of the Indemnitee to participate (with counsel of its choice reasonably acceptable to the Indemnitor but at its sole cost and the Indemnitee's expense) in the defense, to retain counsel for compromise or settlement thereof; provided, however, if the Indemnified Party to defend any such demand, claim or lawsuitdemand is one for which both parties hereto are responsible, provided then both parties shall jointly assume the defense thereof with counsel reasonably acceptable to each party, and neither party may compromise or settle such claim or demand without the other party's consent, which consent will not be unreasonably denied or withheld. The Indemnitee shall notify the Indemnitor at the earliest practical time after the Indemnitee becomes aware of the circumstance, event or activity which gives rise to the asserted obligation of indemnity, it being understood that counsel who will conduct failure to provide such notice shall not affect the Indemnitee's right to indemnification hereunder, except to the extent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be liable for any attorney fees or expenses incurred during the period in which the Indemnitor shall have failed to give such notice). With respect to any actions, suits, proceedings, claims or demands as to which the Indemnitor shall not have exercised its right to assume the defense, the Indemnitee shall assume and control the defense of and contest such demand, claim or lawsuit will be action with counsel chosen by it and approved by the Indemnified Party whose Indemnitor, which approval will shall not be unreasonably withheld, in which case the Indemnitor shall be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in the defense of any suit, such action or proceeding brought against it with respect (the cost of such participation to be at its own expense) and the Indemnitor shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnitee to the extent that such fees and expenses relate to claims as to which indemnification may is due under this Article XI and subject to the limitations contained in this Agreement. Both the Indemnitor and the Indemnitee shall cooperate fully in all respects with one another in any such defense, compromise or settlement, including, without limitation, by making available to the other all pertinent information and personnel under its direct or indirect control, and the parties agree that such cooperation will be sought hereunder; carried out in a way so as not to waive any applicable or available attorney-client privilege, and the parties will take all measures to protect such privilege. Neither party shall compromise or settle any such action, suit, proceeding, claim or demand without prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided, however, if that a party may so compromise or settle, after consultation with the other party, (i) if such compromise or settlement involves solely the named parties payment of money damages and/or the granting of releases, provided that no such compromise, settlement or release shall acknowledge liability for future acts or obligate any ▇▇▇▇▇▇▇▇ Indemnitee with respect to any such proceeding (including any impleaded parties) include both post-Closing activities of the Indemnifying Party and the Indemnified PartyBusiness or, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel except for the Indemnified PartyAssumed Liabilities, obligate any Purchaser Indemnitee with respect to any pre-Closing activities of the Business, (ii) the employment if all claimants provide a release (reasonably acceptable to such Indemnitees) in favor of counsel by such Indemnified Party has been authorized in writing by the Indemnifying PartyIndemnitees, or and (iii) if all claimants agree in writing to maintain the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost facts and expense circumstances of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except confidential to the extent the Indemnifying Party's defense permitted by applicable law). This Section 11.3 shall not apply to direct claims of the action is actually prejudiced any ▇▇▇▇▇▇▇▇ Indemnitee against Purchaser or Silgan or of any Purchaser Indemnitee against ▇▇▇▇▇▇▇▇, that are not based upon claims asserted by such failurethird parties.
Appears in 1 contract
Defense. In the event that the Purchaser or the Company learns that any Person tax authority is taking steps towards the collection or entity not levying of a party stamp duty relating to this Agreement the Bond (a "Duty Claim") or notice thereof is delivered, sent, commenced or initiated against the Company by any taxing authority after the date hereof, Purchaser shall make give Seller prompt notice of such Duty Claim, and Seller shall have the right to assume the defense (at Seller's expense) of any such Duty Claim through counsel of Seller's own choice by so notifying Purchaser within 30 (thirty) days of the first receipt by Seller of such notice from Purchaser; provided, however, that any such counsel shall be reasonably satisfactory to Purchaser. If, under applicable standards of professional conduct, a demand or claim or file or threaten conflict with respect to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party significant issue between the Purchaser and/or the Company and Seller exists in respect of matters embraced such Duty Claim, Seller shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. Seller shall be liable for the fees and expenses of counsel employed by Purchaser or the indemnity under this Agreement, or in Company for any period during which Seller has not assumed the event that a potential Loss, damage or expense comes to the attention defense of any Party such Duty Claim (other than during any period in respect of matters embraced by which Purchaser and/or the indemnity under this Agreement, then the Party receiving Company will have failed to give notice or becoming aware of such event shall promptly notify the other Party in writing of the demandDuty Claim, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in above). If Seller assumes such defense, Purchaser and/or the next sentence, the Indemnifying Party Company shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, right to participate in the defense thereof and to employ counsel, at their own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend such Duty Claim, Purchaser shall and/or shall cause the Company to cooperate in the defense thereof, which cooperation shall include, to the extent reasonably requested by Seller, the retention, and the provision to Seller, of records and information reasonably relevant to such Duty Claim, and making employees of the Company available on a mutually convenient basis to provide additional information and explanation. If Seller chooses to defend or prosecute any suitDuty Claim, action Purchaser shall and/or shall cause the Company to agree to any settlement, compromise or proceeding brought against it discharge of such Duty Claim that Seller may recommend and that, by its terms, discharges Purchaser and the Purchaser Affiliates from the full amount of liability in connection with respect to which indemnification may be sought hereundersuch Duty Claim; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Partythat, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themSeller shall not consent to, and the Indemnifying Party has Purchaser shall not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel be required to assume the defense of such action within a reasonable time; thenagree to, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without that (i) provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of Purchaser or (ii) does not include as an unconditional term thereof the consent giving of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available a release from all liability with respect to such Indemnified Party which are different from or in addition to those which have been asserted by Duty Claim. For the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defensesavoidance of doubt, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it Purchaser may in its sole discretion deem properno event frustrate or cause the Company to frustrate the efforts of Seller to defend the Duty Claim, at the sole cost and expense of the Indemnifying Partyincluding, which costs and expenses shall be paid without limitation, by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except paying any amounts to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureAustrian tax authorities or otherwise settling a dispute.
Appears in 1 contract
Defense. In With respect to any Proceeding as to which Indemnitee notifies the event Company of the commencement thereof, the Company or any Person Subsidiary designated by the Company and that has legal standing to participate in such Proceeding will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company or entity such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of its election to assume the defense of any Proceeding, the Company will not a party be liable to Indemnitee under this Agreement shall make a demand or claim or file or threaten to file or continue otherwise for any lawsuit, which demand, claim or lawsuit may result Expenses subsequently incurred by Indemnitee in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct connection with the defense of such demand, claim Proceeding other than reasonable costs of investigation or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldas otherwise provided below. The Indemnified Party Indemnitee shall have the rightright to employ Indemnitee’s own counsel in such Proceeding, at but all Expenses related thereto incurred after notice from the Company or such Subsidiary of its own expense, to participate in assumption of the defense of any suit, action or proceeding brought against it with respect to which indemnification may shall be sought hereunder; provided, however, if at Indemnitee’s expense unless: (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party Indemnitee has been authorized in writing by the Indemnifying PartyCompany or such Subsidiary, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company or such Subsidiary in the defense of the Proceeding, (iii) after a Change in Control of the Company, or (iiiiv) neither the Indemnifying Party has not Company nor such Subsidiary shall within sixty (60) calendar days (or such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such action within a reasonable time; thenProceeding, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense in each of which cases in clauses (i) through (iv) all Expenses of the Indemnifying Party, which costs and expenses Proceeding shall be paid borne by the Indemnifying Party on a Company; and (v) if the Company or such Subsidiary has employed counsel to represent Indemnitee and other current basis. No Indemnifying Partyand former directors, officers and employees of the Company or such Subsidiary in the defense of any a Proceeding, and a majority of such demandpersons, claim or lawsuitincluding Indemnitee, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available reasonably object to such Indemnified Party which are different from or in addition to those which have been asserted counsel selected by the Indemnifying Party Company or such Subsidiary pursuant to this Section 6(a), then such persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their choice and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of such counsel shall be at the expense of the Company; provided, however, that such counsel shall be chosen from amongst the list of counsel, if applicable, approved by any counsel retained company with which the Company or such Subsidiary obtains or maintains directors’ and officers’ liability insurance, if required by the Indemnified Party to undertake the defenseterms of such insurance. In the event that the Indemnifying Party shall fail separate counsel is retained by an Indemnitee pursuant to respond within ten days after receipt of the Noticethis Section 6(a), the Indemnified Party may retain counsel Company shall and conduct shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such demand, claim separate counsel pursuant to joint-defense agreements or lawsuitconfidentiality agreements, as it may in its sole discretion deem proper, at appropriate. Neither the sole cost and expense Company nor such Subsidiary shall be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnifying PartyCompany or such Subsidiary, as to which costs and expenses Indemnitee shall be paid by have made the Indemnifying Party on a current basis. Failure determination provided for in clause (ii) above or as to provide Notice shall not limit which the rights Indemnitee elects to assume the defense after the occurrence of such party to indemnification, except to the extent the Indemnifying Party's defense either of the action is actually prejudiced by such failureevents described in clause (iii) above.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. In The Parties, working through the event any Person or entity not a party to this Agreement JSC, shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party cooperate to defend any such demandclaims under the strategy, claim or lawsuitterms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the case of any unresolved dispute, each Party named as a defendant in such action shall be entitled upon written notice to defend itself in such matter independently by counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, its own choice and at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, howeverthat each Party shall inform the other Party of the progress of such defense and, if (i) reasonably requested by the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified other Party, representation shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of both parties any defense actions under this Section 9.6(b) shall be [*]. In any action pursued jointly by the same counsel would be inappropriate due to actual or potential differing interests between themParties through the JSC, and the Indemnifying non-leading Party has not retained separate counsel for shall reasonably cooperate with the Indemnified leading Party, (ii) the employment including if required to conduct such defense, furnishing a power of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified attorney. The non-leading Party shall have the right to retain its own counsel confer, through the JSC, with the leading Party in any such defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to be released from the cost-sharing obligation described above, then such Party (a "Removed Party") shall be entitled, upon thirty (30) days prior written notice to the JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the sole cost and expense discretion of the Indemnifying continuing Party (a "Continuing Party"). Following the end of such thirty (30) day notice period, which the Continuing Party shall bear all costs and expenses for the continuation of the matter. The Removed Party shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in promptly and reasonably cooperate to support the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent efforts of the Indemnified Continuing Party. If In any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partyevent, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Removed Party shall fail forego its rights to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as separate representation in any matter from which it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurehas withdrawn.
Appears in 1 contract
Defense. In With respect to any Proceeding as to which Indemnitee notifies the event Company of the commencement thereof, the Company or any Person Subsidiary designated by the Company and that has legal standing to participate in such Proceeding will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company or entity such Subsidiary so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company or such Subsidiary to Indemnitee of its election to assume the defense of any Proceeding, the Company will not a party be liable to Indemnitee under this Agreement shall make a demand or claim or file or threaten to file or continue otherwise for any lawsuit, which demand, claim or lawsuit may result Expenses subsequently incurred by Indemnitee in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct connection with the defense of such demand, claim Proceeding other than reasonable costs of investigation or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldas otherwise provided below. The Indemnified Party Indemnitee shall have the rightright to employ his own counsel in such Proceeding, at but all Expenses related thereto incurred after notice from the Company or such Subsidiary of its own expense, to participate in assumption of the defense of any suit, action or proceeding brought against it with respect to which indemnification may shall be sought hereunder; provided, however, if at Indemnitee's expense unless: (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party Indemnitee has been authorized in writing by the Indemnifying PartyCompany or such Subsidiary, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company or such Subsidiary in the defense of the Proceeding, (iii) after a Change in Control of the Company or a Change in Control of a Subsidiary, or (iiiiv) neither the Indemnifying Party has not Company nor such Subsidiary shall within sixty (60) calendar days (or such shorter period of time as may be necessary to preserve any rights or defenses) in fact have employed counsel to assume the defense of such action within a reasonable time; thenProceeding, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense in each of which cases in clauses (i) through (iv) all Expenses of the Indemnifying Party, which costs and expenses Proceeding shall be paid borne by the Indemnifying Party on a Company; and (v) if the Company or such Subsidiary has employed counsel to represent Indemnitee and other current basis. No Indemnifying Partyand former directors, officers and employees of the Company or such Subsidiary in the defense of any a Proceeding, and a majority of such demandpersons, claim or lawsuitincluding Indemnitee, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available reasonably object to such Indemnified Party which are different from or in addition to those which have been asserted counsel selected by the Indemnifying Party Company or such Subsidiary pursuant to this Section 6(a), then such persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their choice and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of such counsel shall be at the expense of the Company; provided, however, that such counsel shall be chosen from amongst the list of counsel, if applicable, approved by any counsel retained company with which the Company or such Subsidiary obtains or maintains directors' and officers' liability insurance, if required by the Indemnified Party to undertake the defenseterms of such insurance. In the event that the Indemnifying Party shall fail separate counsel is retained by an Indemnitee pursuant to respond within ten days after receipt of the Noticethis Section 6(a), the Indemnified Party may retain counsel Company shall and conduct shall cause such Subsidiary, if applicable, to cooperate fully with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to Indemnitee and such demand, claim separate counsel pursuant to joint-defense agreements or lawsuitconfidentiality agreements, as it may in its sole discretion deem proper, at appropriate. Neither the sole cost and expense Company nor such Subsidiary shall be entitled to assume the defense of any Proceeding brought by or on behalf of the Indemnifying PartyCompany or such Subsidiary, as to which costs and expenses Indemnitee shall be paid by have made the Indemnifying Party on a current basis. Failure determination provided for in clause (ii) above or as to provide Notice shall not limit which the rights Indemnitee elects to assume the defense after the occurrence of such party to indemnification, except to the extent the Indemnifying Party's defense either of the action is actually prejudiced by such failureevents described in clause (iii) above.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. In the event any Person or entity not a party to this Agreement Third Party shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten thirty (30) days after written notice by the Indemnified Party (the "“Notice"”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, ; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten thirty (30) days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's ’s defense of the action is actually prejudiced by such failure. The assumption of the defense, or the non-assumption of the defense, by the purported Indemnifying Party will not affect such party’s right to dispute its obligation to provide indemnification hereunder.
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Defense. In the event If any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to Action is brought against an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceParty, the Indemnifying Party shall have will be entitled to participate in and to assume the optiondefense thereof to the extent that it may wish, at its sole cost with counsel reasonably satisfactory to such Indemnified Party, and expenseafter notice from the Indemnifying Party to such Indemnified Party of the Indemnifying Party’s election to assume the defense thereof, the Indemnifying Party will not be liable to retain counsel for the Indemnified Party to defend for any such demand, claim legal or lawsuit, provided that counsel who will conduct other expenses subsequently incurred by the latter in connection with the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both thereof unless the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel fails to assume the defense of such action within a reasonable time; thenAction to protect the Indemnified Party. Notwithstanding anything to the contrary in this Subsection 10.4(b), the Indemnified Party shall have the right will be entitled to retain select its own counsel and assume the defense of any Action brought against it, at the sole cost and expense of the Indemnifying Party, ’s expense if (i) the court in which costs and such Action is pending determines that a conflict of interest exists such that the Indemnifying Party’s counsel is prohibited by such court or otherwise unable to represent the Indemnified Party with respect to such Action or (ii) if there is one or more defenses that could be asserted by the Indemnified Party that could not be asserted by the Indemnifying Party or the Indemnifying Party’s counsel (on the Indemnified Party’s behalf). The expenses shall of such defense to be paid by the Indemnifying Party on shall be limited to the expenses of one law firm in each state in which an action has been filed. As a current basiscondition to the Indemnifying Party’s obligations hereunder, the Indemnified Party will in good faith cooperate with and assist the Indemnifying Party in the prosecution or defense of such indemnified Action at the expense of the Indemnifying Party. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, Party will consent to entry of any judgment or enter into any settlement with respect to an indemnified Action either: (i) without the consent of the Indemnified Party, which consent will not be unreasonably delayed, conditioned or withheld; or (ii) unless such judgment or settlement includes the claimant or plaintiff giving the Indemnified Party an unconditional release from all liability with respect to such Action. If any No Indemnified Party will have been advised by counsel chosen by it that there may be one consent to entry of any judgment or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defensesenter into any settlement of any indemnified Action, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demandwhich has been assumed by an Indemnifying Party, claim or lawsuit on behalf without the consent of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall consent will not be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnificationunreasonably delayed, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureconditioned or withheld.
Appears in 1 contract
Defense. In Except as otherwise provided herein, the event any Person Indemnifying ------- Party may elect to compromise or entity not a party to this Agreement defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes be reasonably satisfactory to the attention of Indemnified Party), any Third Party in respect of matters embraced by Claim. If the indemnity under this AgreementIndemnifying Party elects to compromise or defend such Third Party Claim, then the Party it shall, within 30 days after receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten Third Party Claim (10 days after written notice by if the Indemnified Party (states in such notice that prompt action is required), notify the "Notice") to an Indemnifying Indemnified Party of such demandits intent to do so, claim or lawsuitand the Indemnified Party shall cooperate, except as provided at the expense of the Indemnifying Party, in the next sentencecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party shall have elects not to compromise or defend against the optionThird Party Claim, at its sole cost and expense, or fails to retain counsel for notify the Indemnified Party of its election to defend any such demanddo so as herein provided, claim or lawsuit, provided that counsel who will conduct otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by the Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any such proceeding Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon advice of its outside legal counsel, that (including any impleaded partiesx) include both there is a conflict of interest between the Indemnifying Party and the Indemnified Party, representation Party in the conduct of both parties by the same counsel would be inappropriate due defense of such Third Party Claim or (y) there are specific defenses available to actual the Indemnified Party which are different from or potential differing interests between them, and additional to those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own assume and direct the defense of such Third Party Claim. In such an event, the Indemnifying Party shall pay the reasonable fees and disbursements of counsel at of the Indemnifying Party and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (however, if the sole cost and expense settlement relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any may settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party) over the objection of the other; provided, however, that consent to -------- ------- settlement or compromise shall not be unreasonably withheld by the Indemnified Party. If In any event, except as otherwise provided herein, the Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by and the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, thenmay each participate, at the election of the Indemnified Partyits own expense, the Indemnifying Party will not have the right to continue in the defense of such demand, claim or lawsuit on behalf of such Indemnified Third Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseClaim. In the event that If the Indemnifying Party shall fail chooses to respond within ten days after receipt of the Noticedefend any claim, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by make available to the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such party to indemnificationdefense, except subject to the extent the Indemnifying Party's defense receipt of the action is actually prejudiced by such failureappropriate confidentiality agreements.
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Defense. In If the event any Person or entity not facts relating to a party to this Agreement shall make Loss arise out a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Third Party in respect of matters embraced by the indemnity under this AgreementClaim, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor shall, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim assume the defense or lawsuitthe prosecution thereof, except as provided in including the next sentenceemployment of counsel or accountants, reasonably satisfactory to the Indemnifying Party shall have the optionIndemnified Party, at its sole cost and expense; PROVIDED, to retain counsel for HOWEVER, that during the interim the Indemnified Party shall use its best efforts to defend any such demand, claim take all action (not including settlement) reasonably necessary to protect against further damage or lawsuit, provided that counsel who will conduct loss with respect to the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldLoss. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if unless (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (iia) the employment of counsel thereof has been specifically authorized by the Indemnity Obligor, (b) such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it reasonably satisfactory to the Indemnity Obligor that there may be one or more legal defenses available to such Indemnified Party it which are different from or in addition additional to those which have been asserted available to the Indemnity Obligor and in the reasonable judgment of such counsel it is advisable for such Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor defends or prosecutes such claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trial as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such claim effected without its prior written consent. In the event of payment by the Indemnifying Indemnity Obligor to the Indemnified Party in connection with any Loss arising out of a Third Party Claim, the Indemnity Obligor shall be subrogated to and counsel retained by shall stand in the Indemnifying place of the Indemnified Party declines as to assert those defenses, then, at any events or circumstances in respect of which the election Indemnified Party may have any right or claim against such third party relating to such indemnified matter. The Indemnified Party shall cooperate with the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor will take no action in connection with any claim that would adversely affect the Indemnified Party without the consent of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Consulting Agreement (Ultrexx Corp)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an The Indemnified Party in respect shall permit the Indemnitor to assume the defense of matters embraced such Claim and any litigation resulting therefrom (and to prosecute by the indemnity under this Agreement, way of counterclaim or in the event that a potential Loss, damage third party complaint any claim against such third party arising out of or expense comes relating to the attention of any Party Claim in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice question) upon receipt by the Indemnified Party (of the "Notice") Indemnitor's written acknowledgment of its obligation to an Indemnifying indemnify the Indemnified Party with respect to the Claim and agreement to assume the defense of all claims or counts of such demand, claim or lawsuit, except as provided in the next sentenceClaim. After giving such written agreement, the Indemnifying Indemnitor shall not be liable under this Agreement for any legal or other expenses subsequently incurred by the Indemnified Party in connection with such defense but the Indemnitor shall be responsible for all such expenses incurred by the Indemnified Party in connection with the Claim prior to the assumption of the defense by the Indemnitor. Notwithstanding the foregoing, any Indemnified Party shall have be entitled to conduct its own defense at the optioncost and expense of the Indemnitor if the Indemnified Party can establish, by reasonable evidence, that the conduct of its defense by the Indemnitor would reasonably be likely to prejudice the Indemnified Party due to the nature of any claims or counterclaims presented or by virtue of a conflict between the interest of the Indemnified Party and the Indemnitor, and provided further that in any event the Indemnified Party may participate in such defense at its sole cost and own expense, to retain counsel for . Counsel selected by the Indemnitor or by the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct Claim shall be subject to the defense reasonable approval of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldother party. The Indemnified Party shall have If the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel Indemnitor fails to assume the defense of any such action Claim as provided above within a reasonable time; thentime (which shall be such period of time as will not, in the reasonable judgment of the Indemnified Party, result in prejudice to the rights of the Indemnified Party) after due notice has been given of a Claim, then until such time as the Indemnitor shall make such assumption, the Indemnified Party shall have the right to retain prosecute and conduct its own defense by counsel of its choice; provided, however, that the Indemnified Party may not enter into any compromise or settlement thereof without the consent of the Indemnitor, which consent shall not be unreasonably withheld, conditioned or delayed. Such defense shall be at the sole cost and expense of the Indemnifying PartyIndemnitor if the Indemnitor subsequently assumes such defense as provided above, or if it is subsequently determined that the Indemnitor is or was obligated to indemnify the Indemnified Party with respect to such Claim. Notwithstanding the foregoing: (i) if a Claim seeks equitable relief; or (ii) if the subject matter of a Claim relates to the ongoing business of any of the Purchaser Indemnified Parties, which costs and expenses shall be paid by Claim, if decided against any of the Indemnifying Party Purchaser Indemnified Parties, would have a Material Adverse Effect on a current basis. No Indemnifying Party, in the defense ongoing business or reputation of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Purchaser Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defensesParties, then, at the election of the Indemnified Partyin each such case, the Indemnifying Party will Purchaser Indemnified Parties alone shall be entitled to, acting as a reasonable person under similar circumstances, contest, defend and settle such Claim in the first instance and, if the Purchaser Indemnified Parties do not contest, defend or settle such Claim, the Sellers' Representative shall then have the right to continue the defense of contest and defend (but not settle) such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureClaim.
Appears in 1 contract
Defense. In If any action, litigation, suit, investigation, arbitration or other proceeding ("Proceeding") is brought against an Indemnitee for which such Indemnitee is or may be entitled to indemnification pursuant to Sections 8.1 or 8.2 from an Indemnitor, the event any Person or entity not a party to this Agreement Indemnitee shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes promptly give notice to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware Indemnitor of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldProceeding. The Indemnified Party shall have the rightIndemnitor shall, at its own expense, have the opportunity to participate in be represented by counsel of its choosing and to assume and conduct the defense of any suitsuch Proceeding upon providing a written undertaking to that effect to the Indemnitee. If, action after such opportunity, the Indemnitor or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) its counsel does not assume the named parties to defense of any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified PartyProceeding, representation of both parties it shall be bound by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing results obtained by the Indemnifying PartyIndemnitee. In the event that the Indemnitee does not receive written notice from the Indemnitor within fifteen (15) days of having given notice to the Indemnitor of any such Proceeding, or (iii) the Indemnifying Party has Indemnitor shall be deemed to have elected not in fact employed counsel to assume the defense of such action within a reasonable time; thenProceeding, and in such event the Indemnified Party shall Indemnitee will have the right to retain its own counsel at the sole cost conduct such defense and expense of the Indemnifying Party, which costs to compromise and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any settle such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement Proceeding without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defenseIndemnitor. In the event that the Indemnifying Party shall fail Indemnitor does elect to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct assume the defense of such demandProceeding, claim the Indemnitee will cooperate with and make available to the Indemnitor such assistance and materials as may be reasonably requested by it, and the Indemnitee will have the right at its expense to participate in the defense; provided, however, that neither party will have the right to compromise or lawsuit, as it may in its sole discretion deem proper, at settle such Proceeding without the sole cost and expense prior written consent of the Indemnifying Party, other party which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In the event If any Person or entity not a Proceeding referred to in Section 10.9.1 is brought against an indemnified party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes and it gives notice to the attention indemnifying party of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware commencement of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceProceeding, the Indemnifying Party shall have indemnifying party will, unless the optionclaim is a Tax Claim, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in such Proceeding and, to the defense of any suit, action or proceeding brought against extent that it with respect to which indemnification may be sought hereunder; provided, however, if wishes (unless (i) the named parties indemnifying party is also a party to any such proceeding (including any impleaded parties) include both the Indemnifying Party Proceeding and the Indemnified Party, indemnified party determines in good faith that joint representation of both parties by the same counsel would be inappropriate due to actual inappropriate, or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment indemnifying party fails to provide reasonable assurance to the indemnified party of counsel by its financial capacity to defend such Indemnified Party has been authorized in writing by the Indemnifying PartyProceeding and provide indemnification with respect to such Proceeding), or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; thenProceeding with counsel satisfactory to the indemnified party and, after notice from the Indemnified Party shall have indemnifying party to the right indemnified party of its election to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue assume the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the NoticeProceeding, the Indemnified Party may retain indemnifying party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 10 for any fees of other counsel and conduct or any other expenses with respect to the defense of such demandProceeding, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid each case subsequently incurred by the Indemnifying Party on indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying party assumes the defense of a current basis. Failure Proceeding, (i) it will be conclusively established for purposes of this Agreement that the claims made in that Proceeding are within the scope of and subject to provide Notice shall not limit indemnification; (ii) no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party’s consent unless (A) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the indemnifying party; and (iii) the indemnifying party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying party to indemnificationof the commencement of any Proceeding and the indemnifying party does not, except within ten (10) days after the indemnified party’s notice is given, give notice to the extent indemnified party of its election to assume the Indemnifying Party's defense of such Proceeding, the action is actually prejudiced indemnifying party will be bound by any determination made in such failureProceeding or any compromise or settlement effected by the indemnified party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Management Network Group Inc)
Defense. In the event any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Lossdeclaratory judgment action, damage cancellation, opposition or expense comes to the attention similar proceeding alleging invalidity, unenforceability or noninfringement of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demandLICENSED PATENTS, claim EXISTING JOINT TECHNOLOGY PATENTS or lawsuit. Within ten days after written notice JOINT TECHNOLOGY PATENTS claiming MONITORING TECHNOLOGY shall be brought by the Indemnified Party (the "Notice") a THIRD PARTY against NIMCO and/or ALTEA, and/or SRX, as long as SRX has rights to an Indemnifying Party of such demandMONITORING TECHNOLOGY, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party SRX shall have the right to retain its own counsel defend and/or settle such action or proceeding as it relates to the issues of noninfringement. Without NIMCO's and/or ALTEA's knowledge and written consent, SRX may not settle issues of unenforceability or invalidity of such LICENSED PATENTS, EXISTING JOINT TECHNOLOGY PATENTS or JOINT TECHNOLOGY PATENTS in any manner. Subject to Article 12, if SRX determines at the sole cost any time that it does not desire to defend and/or settle (or continue to defend and/or settle) such action, SRX shall promptly so advise NIMCO and/or ALTEA, and expense of the Indemnifying Party, which costs and expenses NIMCO and/or ALTEA shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not then have the right to defend and/or settle (or continue to defend and/or settle) such action at NIMCO and/or ALTEA's expense and SRX shall, without cost or delay, provide NIMCO and/or ALTEA with all unprivileged information, data, documents, and pleadings it has in its possession to enable NIMCO and/or ALTEA to defend (or continue to defend) such action. Any privileged information, such as attorney work product, attorney client communications, legal assessments, opinions or the like which has been, or can be, asserted by SRX shall also be provided to NIMCO and/or ALTEA to the extent that such information will not, in the opinion of counsel for SRX, be detrimental to SRX if the privilege is lost or which can be passed from counsel for SRX to counsel for NIMCO and/or ALTEA under a confidential disclosure agreement, protective order, or other relationship which would not destroy such privilege. NIMCO and/or ALTEA shall not be liable to SRX for any costs incurred by SRX prior to SRX advising NIMCO and/or ALTEA of its decision not to defend (or continue to defend) such action. However, such action by NIMCO and/or ALTEA shall not relieve SRX of its obligations pursuant to Articles 3 and 12, including defending and indemnifying NIMCO and/or ALTEA relating to claims relating to ownership or inventorship of patents, except, however, that SRX shall not be liable for any costs of NIMCO and/or ALTEA's in defending the LICENSED PATENTS, EXISTING JOINT TECHNOLOGY PATENTS or JOINT TECHNOLOGY PATENTS pursuant to this Section 8.2. Any action referenced above pertaining solely to JOINT DELIVERY TECHNOLOGY shall be the sole responsibility of ALTEA (unless SRX has acquired right to JOINT DELIVERY TECHNOLOGY, in which case SRX shall be solely responsible), and SRX agrees to cooperate with ALTEA in its defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party pursuant to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.Section 8.4
Appears in 1 contract
Sources: License and Joint Development Agreement (Spectrx Inc)
Defense. In The Parties, working through the event any Person or entity not a party to this Agreement JSC, shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party cooperate to defend any such demandclaims under the strategy, claim or lawsuitterms and conditions as may be authorized by the JSC. The JSC shall designate one Party as the leading Party for such defense. The Parties shall make decisions with regard to such actions covered by this Section 9.6 jointly through the JSC in accordance with the provisions of Sections 2.5(b) and 2.5(c), provided that any unresolved disputes shall not be subject to settlement by expedited arbitration and, in the case of any unresolved dispute, each Party named as a defendant in such action shall be entitled upon written notice to defend itself in such matter independently by counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, its own choice and at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, howeverthat each Party shall inform the other Party of the progress of such defense and, if (i) reasonably requested by the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified other Party, representation shall reasonably cooperate with the other Party. For so long as the Parties continue to pursue such matter jointly through the JSC, all costs and expenses of both parties any defense actions under this Section 9.6(b) shall be [*]. In any action pursued jointly by the same counsel would be inappropriate due to actual or potential differing interests between themParties through the JSC, and the Indemnifying non-leading Party has not retained separate counsel for shall reasonably cooperate with the Indemnified leading Party, (ii) the employment including if required to conduct such defense, furnishing a power of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified attorney. The non-leading Party shall have the right to retain its own counsel confer, through the JSC, with the leading Party in any such defense and the leading Party shall consider in good faith such input from the non-leading Party. If either Party desires to be released from the cost-sharing obligation described above, then such Party (a "Removed Party") shall be entitled, upon [*] prior written notice to the JSC, to be released from sharing such costs and the matter shall thereafter be handled and pursued at the sole cost and expense discretion of the Indemnifying continuing Party (a "Continuing Party"). Following the end of such [*] notice period, which the Continuing Party shall bear all costs and expenses for the continuation of the matter. The Removed Party shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in promptly and reasonably cooperate to support the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent efforts of the Indemnified Continuing Party. If In any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Partyevent, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Removed Party shall fail forego its rights to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as separate representation in any matter from which it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurehas withdrawn.
Appears in 1 contract
Defense. In If the event any Person or entity not facts pertaining to a party to this Agreement shall make Loss by a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Buyer Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Company Indemnified Party, representation as the case may be, arise out of both parties the claim of any third party, or if there is any claim against a third party available by virtue of the same counsel would be inappropriate due to actual or potential differing interests between themcircumstances of the Loss, and the applicable Indemnifying Party has not retained separate counsel for may assume the defense or the prosecution thereof by written notice to such Buyer Indemnified Party or Seller Indemnified Party, (ii) including the employment of counsel by or accountants reasonably satisfactory to such Buyer Indemnified Party has been authorized in writing by or Seller Indemnified Party, at the Indemnifying Party, 's cost and expense. Such Buyer Indemnified Party or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Seller Indemnified Party shall have the right to retain its own employ counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid separate from counsel employed by the such Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demandaction and to participate therein, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without but the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any such counsel retained employed by the such Buyer Indemnified Party or Seller Indemnified Party shall be at its expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to undertake a settlement of any claim without the defenseprior written consent of the Buyer Indemnified Party or Seller Indemnified Party, as the case may be, which consent will not be unreasonably withheld. In the event that Whether or not the Indemnifying Party chooses to so defend or prosecute such claim, all the parties hereto shall fail cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in connection therewith. The Indemnifying Party shall be subrogated to respond within ten days after receipt all rights and remedies of the Notice, the Buyer Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuitSeller Indemnified Party, as it the case may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe.
Appears in 1 contract
Defense. In the event If any Person or entity not a party to this Agreement shall make a claim, demand or claim or file or threaten to file or continue liability is asserted by any lawsuit, which demand, claim or lawsuit may result in liability to an third party against any Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceParty, the Indemnifying Party shall have the optionright and shall upon the written request of the Indemnified Party, at its sole cost and expense, to retain counsel for defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldand, in the case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. The In any such action or proceeding, the Indemnified Party shall have the rightright to retain its own counsel, but the fees and expenses of such counsel shall be at its own expenseexpense unless (a) the Indemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (ib) the named parties to any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of both parties the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate inadvisable due to actual or potential differing conflicts of interests between them. The Parties shall cooperate and may participate in the defense of all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Indemnifying Party assumes the defense (i) it shall be conclusively established for purposes of this Agreement that the claims made in the Action are within the scope of and subject to indemnification but only if the Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b); and (ii) no compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the exclusive relief provided is monetary damages that are paid in full by the Indemnifying Party. If written notice is given to an Indemnifying Party of the commencement of any Action and the Indemnifying Party has not retained separate counsel for does not, within twenty (20) days after the Indemnified Party's written notice is given, (ii) give written notice to the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel of its election to assume the defense of such action within a reasonable time; thenAction, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basisshall be bound by any determination made in such Action or any compromise or settlement effected by the Indemnified Party. No Indemnifying Party, in In connection with the defense of any such demandclaim, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified each Party will have been advised by counsel chosen by it that there may be one or more legal defenses shall make available to such Indemnified the Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis defense, any books, records or other documents within its control that are reasonably requested in the course of or necessary or appropriate for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the such defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Sources: Securities Purchase Agreement (Hovnanian Enterprises Inc)
Defense. In the event any Person or entity not a party to this Agreement OF CLAIMS -- The Company shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, entitled to participate in the defense of any suitIndemnifiable Claim or to assume the defense thereof, action or proceeding brought against it with respect counsel reasonably satisfactory to which indemnification may be sought hereunderIndemnitee; provided, however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (ia) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties to in any such proceeding Indemnifiable Claim (including any impleaded parties) include both the Indemnifying Party Company and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, Indemnitee and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party Indemnitee shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it conclude that there may be one or more legal defenses available to such Indemnified Party which him or her that are different from or in addition to those which available to the Company or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel with respect to any particular Indemnifiable Claim) at the Company's expense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company's prior written consent. The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim that Indemnitee is or could have been asserted by a party unless such settlement solely involves the Indemnifying Party payment of money and counsel retained by includes a complete and unconditional release of Indemnitee from all liability on any claims that are the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense subject matter of such demandIndemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided, claim or lawsuit on behalf however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureIndemnitee.
Appears in 1 contract
Defense. In If a claim by a third party (a "Third Party Claim") is made ------- ----------------- against an SFI Indemnitee arising out of a matter for which the event any Person SFI Indemnitee is entitled to be indemnified pursuant to Section 5 hereof, the Preferred Shareholders may elect to assume the defense or entity not the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be shortened to 15 days in the case of a party commenced lawsuit or proceeding) after receipt of a Notice of Claim to this Agreement shall make a demand or claim or file or threaten undertake to file or continue any lawsuitconduct and control, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect through counsel of matters embraced their own choosing as designated by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, Shareholder Representative and at its their sole cost risk and expense, the good faith settlement or defense of such claim, and the SFI Indemnitee(s) shall cooperate fully with the Preferred Shareholders in connection therewith; provided that the SFI Indemnitee(s) shall be entitled to retain -------- participate in such settlement or defense through counsel for the Indemnified Party to defend any such demand, claim or lawsuitchosen by it, provided that the fees and expenses of such counsel who will conduct shall be borne by the SFI Indemnitee(s); and provided further that the Preferred Shareholders can only assume the defense if (a) the amount of the Third Party Claim does not exceed the amount of the Escrow Funds held hereunder or (b) the Preferred Shareholders provide commercially reasonable evidence that the Preferred Shareholders will have sufficient financial resources to defend the claim and satisfy their indemnification obligations. During the interim the SFI Indemnitee shall use its best efforts to take all action (not including settlement) reasonably necessary to protect against further damage or loss with respect to the alleged Loss. The Preferred Shareholders shall obtain the written consent of the SFI Indemnitee prior to ceasing to defend, settling or otherwise disposing of such demandclaim if as a result thereof the SFI Indemnitee would become subject to injunctive, claim declaratory or lawsuit will other equitable relief or the business of the SFI Indemnitee would be approved by materially adversely affected in any manner. Whether or not the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party Preferred Shareholders choose so to defend or prosecute such claim, all the parties hereto shall have the right, at its own expense, to participate cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information. The Preferred Shareholders shall not be liable for any settlement of any suitsuch claim effected without their prior written consent, action or proceeding brought against it with respect to which indemnification may shall not be sought hereunder; provided, howeverunreasonably withheld. However, if (i) the named parties Preferred Shareholders, fail to any defend such proceeding (including any impleaded parties) include both claim within the Indemnifying Party time period necessary to preserve the rights and defense of the Indemnified PartySFI Indemnitee, representation the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, such claim on behalf of and the Indemnifying Party has not retained separate counsel for the Indemnified Partyaccount and risk of the Preferred Shareholders, (ii) subject to the employment right of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel Preferred Shareholders to assume the defense of such action claim at any time within the 30-day time period after receiving Notice of Claim. If a reasonable time; thenclaim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (defined in Section 5) resulting in SFI's use of the Software (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Indemnified Party Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall have the right be entitled at their sole expense to retain its own counsel at the sole cost and expense do any of the Indemnifying Partyfollowing: (i) procure for SFI, which costs Clarus CSA, Inc. and expenses shall be paid by their licensees the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the unrestricted right to continue using the defense of Software, (ii) modify the Software so that it becomes noninfringing, (iii) settle the third party's infringement claim in a manner that gives SFI, Clarus CSA, Inc. and their licensees the unrestricted rights to the software being enjoined or otherwise restricted, or (iv) pay the indemnified party's claim as provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which shall not be unreasonably withheld. SFI shall comply with any settlement or court order made in connection with such demand, claim or lawsuit on behalf of proceeding in the foregoing sentence provided that such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained compliance by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice SFI shall not limit the rights Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such party claim effected without its prior written consent, which shall not be unreasonably withheld. Before any claim may be brought against any of the Preferred Shareholders hereunder, or under the Merger Agreement, all the Escrow Funds shall be used first to indemnificationpay any claims made under Article IX of the Merger Agreement or this Agreement, except and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Indemnifying Party's defense Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for which they are liable hereunder without consent of SFI so long as the payment or performance does not either (y) exhaust the Escrow Funds or (y) exceed the maximum liability amounts set forth below. Settlements requiring performance or payment in excess of the action is actually prejudiced by such failuremaximum liability amounts shall require SFI's prior written consent.
Appears in 1 contract
Defense. In (a) If the event any Person or entity not facts presumably constitute a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity Claim under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, be entitled to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct assume the defense or the legal proceeding thereof, by means of such demanda written notice addressed to the Protected Parties, claim including the hiring of counsel or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightaccountants, at its own cost and expense, . Each one of the Protected Parties shall have the right to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same use counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not independently from counsel retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or in any legal action and to participate in it. The fees and expenses of counsel retained by the Protected Parties shall be at all times for its exclusive account.
(iiib) If the Indemnifying Party has does not in fact employed counsel to assume the defense or legal proceeding of such action a Claim within (i) fifteen (15) days from the notice thereof (either provided by ANDINA or by CMF) or (ii) within the period in which it is necessary to make a reasonable time; thendefense in a legal proceeding, whichever is the lesser, the Indemnified Party shall have Protected Parties, as the right to retain its own counsel at the sole cost and expense of the Indemnifying Partycase may be, which costs and expenses shall be paid by the Indemnifying Party on entitled to settle, compromise or agree upon a current basis. No Indemnifying Partyconciliation with respect to that claim, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Indemnifying Party.
(c) CMF or the Indemnifying Party shall not agree upon the settlement of any claim which determines: (i) an indemnification that does not consist of the payment of monetary damages, or (ii) that could produce an adverse impact or effect on the Business or on the financial condition of CMF, without the prior written consent of all the Protected Parties. If The Protected Parties shall not be responsible for any Indemnified Party will have been advised by counsel chosen by it that there may be one settlement or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been conciliation of a Claim asserted by the Indemnifying Party and counsel retained by or CMF, without said consent.
(d) Whether the Indemnifying Party declines elects or not to assert those defensesdefend or submit said Claim in a legal proceeding, thenCMF and all the parties that execute this Agreement shall cooperate in the defense or legal process thereof and shall deliver the registries, at information and testimonies that may be necessary and reasonably requested; and shall attend the election meetings, summons, testimonials, hearings, lawsuits and appeals that may be reasonably requested in connection therewith. Whenever the law so determines, or by virtue of a written agreement of the Indemnified PartyParties, the Indemnifying Party will not have may subrogate all its rights of CMF or the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuitProtected Parties, as it the case may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe.
Appears in 1 contract
Defense. (i) In the event any Person or entity not case of a third party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitclaim, which demand, claim or lawsuit the Indemnifying Party may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or participate in the event that a potential Lossdefense thereof and, damage or expense comes if it so chooses and irrevocably acknowledges its obligation to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by indemnify the Indemnified Party therefor, control the defense of an Indemnifiable Claim with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the "Notice") to an Indemnified Party and the Indemnifying Party with respect to the claim or its defense exists or is likely to develop during the pendency of the litigation, and as a result of such demandconflict, the Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or lawsuit(y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, except or of its of their senior management, in its or their capacity as provided such (which issues are a fundamental element of the claim) then the In- demnified Party shall be entitled to control the defense of the claim in accordance with paragraph (b)(ii) of this Section 9.3, it being understood that the mere allegation of fraud, willful misconduct, bad faith, malfeasance or any similar such claim as part of multiple claims constituting an Indemnifiable Claim, shall not be deemed, in and of itself, to provide the basis for the Indemnified Party's rights as set forth in this clause (y). In all cases, the party without the right to control the defense of the Indemnifiable Claim may participate in the next sentencedefense at its own expense. In the case of a third party claim, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by and irrevocably acknowledges its obligation to indemnify the Indemnified Party whose approval will not unreasonably be withheldtherefor. The Indemnified Indemnifying Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis liable for the reasonable fees and expenses of any counsel retained employed by the Indemnified Party to undertake the defense. In the event that for any period during which the Indemnifying Party has not assumed the defense thereof, provided that it either irrevocably acknowledges in writing its indemnity obligations with respect to the Indemnity Claim or it is determined by a court of competent jurisdiction that it is obligated hereunder to provide such indemnification. If the Indemnifying Party disputes its liability with respect to a potential Indemnifiable Claim or the amount thereof (whether or not it desires to defend the Indemnified Party against a third party claim), the parties shall fail endeavor in good faith to respond settle such dispute. The Indemnifying Party shall not settle or compromise a third party claim or legal proceeding without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided that such prior written consent shall not be required with respect to any Indemnifiable Claim that relates to any item referred to in Sections 9.1(c), (d), (e), (f), (g), (h), or (i), except with respect to any Indemnifiable Claim relating to Remediation of Hazardous Substances that is covered by Section 5.18 shall remain subject in all respects to the terms of Section 5.18. The Indemnified Party shall not settle or compromise a third party claim for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party does not assume the defense of any third party claim or litigation resulting therefrom within ten 20 days after receipt the date it receives notice of such claim from the NoticeIndemnified Party, the Indemnified Party may retain counsel and conduct the defense of defend against such demand, claim or lawsuit, litigation in such manner as it may deem appropriate, including settling such claim or litigation, after giving notice to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate. Notwithstanding anything in its sole discretion deem properthis Section 9.3 to the contrary, if for any reason (for example the effect of the limitations set forth in Sections 9.4 or 9.5 or evidence that an Indemnifiable Loss may be attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, the parties will (A) cooperate in good faith to determine whether an Indemnifiable Claim will be for the account of the Seller Indemnitors or Purchaser, (B) until such uncertainty is resolved to the mutual satisfaction of the parties, jointly determine who will control the defense and settlement of any such Indemnifiable Claim and how such defense and settlement will be handled, (C) cooperate with each other in the defense and settlement of such Indemnifiable Claim and the exchange of information relevant thereto, (D) unless otherwise agreed, share the out- of-pocket costs of such defense and settlement (including the costs of investigation, response and mitigation) equally until the parties' respective rights to indemnification for such costs are resolved, and (E) treat the defense and settlement of such Indemnifiable Claim as a joint and common defense, including any joint defense agreement which may be entered into by the parties.
(ii) In the case of claims described in the proviso to the first sentence of Section 9.3(b)(i), the Indemnified Party may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such claim, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by but the Indemnifying Party on a current basis. Failure to provide Notice will not be bound by any compromise or settlement effected without its consent (which consent shall not limit be unreasonably withheld, conditioned or delayed). The Indemnified Party shall conduct the rights of such party to indemnificationdefense in good faith and in a commercially reasonable manner, except to and shall inform the extent Indemnifying Party periodically, or upon the Indemnifying Party's reasonable request, of the status of the litigation. The Indemnified Party's choice of counsel shall be subject to the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed. The Indemnifying Party may participate in the defense thereof, at its own expense. If, in order to preserve existing insurance for a claim against IPC currently maintained by Dynegy, it is necessary to permit Dynegy's insurer to conduct the defense of IPC, Purchaser will consider in good faith waiving or sharing its right to control such defense so that Dynegy's insurance rights are not lost, subject to the action condition that the insurer accepts the tender of the claim without reservation of rights. Notwithstanding anything to the contrary in this Section 9.3(b), any Indemnifiable Claim relating to Hazardous Substances that is actually prejudiced covered by such failureSection 5.18 shall remain subject in all respect to the terms of Section 5.18.
Appears in 1 contract
Defense. In Except as otherwise provided herein, the event any Person ------- Indemnifying Party may elect to compromise or entity not a party to this Agreement defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes be reasonably satisfactory to the attention of Indemnified Party), any Third Party in respect of matters embraced by Claim. If the indemnity under this AgreementIndemnifying Party elects to compromise or defend such Third Party Claim, then the Party it shall, within 30 days after receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demandThird Party Claim, claim or lawsuit. Within ten days after written notice by notify the Indemnified Party (of its intent to do so, and the "Notice") to an Indemnified Party shall cooperate, at the expense of the Indemnifying Party of such demandParty, claim or lawsuit, except as provided in the next sentencecompromise of, or defense against, such Third Party Claim. If the Indemnifying Party shall have elects not to compromise or defend against the optionThird Party Claim, at its sole cost and expense, or fails to retain counsel for notify the Indemnified Party of its election to defend any such demanddo so as herein provided, claim or lawsuit, provided that counsel who will conduct otherwise abandons the defense of such demandThird Party Claim, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheldmay pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim including the costs and expenses of the Indemnified Party incurred in connection therewith. The Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall have reasonably conclude, based upon the rightwritten advice of its counsel, at its own expense, to participate in the defense that (x) there is a conflict of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both interest between the Indemnifying Party and the Indemnified PartyParty in the conduct of the defense of such Third Party Claim, representation of both parties by or (y) there are specific defenses available to the same counsel would be inappropriate due Indemnified Party which are different from or additional to actual or potential differing interests between them, and those available to the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by and which could be materially adverse to the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, then the Indemnified Party shall have the right to retain its own be represented by counsel at selected by it. In such an event, the sole cost reasonable fees and expense disbursements of a single counsel to the Indemnified Party shall be included in the loss suffered by the Indemnified Party in respect of such Third Party Claim. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party, 's prior written consent (which costs and expenses consent shall not be paid by unreasonably withheld). If the Indemnifying Party on a current basis. No Indemnifying Party, in shall have assumed the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such demandThird Party Claim, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without which releases the consent of Indemnified Party completely in connection with such Third Party Claim and which would not otherwise adversely affect the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party declines any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to assert those defenses, then, at the election receipt of appropriate confidentiality agreements. Notwithstanding the Indemnified Partyforegoing, the Indemnifying Party will shall not have the right be entitled to continue assume the defense of such demand, claim or lawsuit on behalf of such Indemnified any Third Party Claim (and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis shall be liable for the reasonable fees and expenses of any counsel retained incurred by the Indemnified Party to undertake in defending such Third Party Claim) if the defenseThird Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party which the Indemnified Party reasonably determines, based on the opinion of its outside counsel, cannot be separated form any related claim for money damages. In If such equitable relief or other relief portion of the event Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall fail be entitled to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct assume the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure portion relating to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failuremoney damages.
Appears in 1 contract
Sources: Purchase Agreement (Legg Mason Inc)
Defense. In the event any Person or entity not If a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitthird‑party action, which demandsuit, claim or lawsuit demand (a “Third Party Claim”) is involved, then, upon receipt of the Indemnification Notice, the Indemnitor shall have fifteen (15) calendar days after said notice is given to elect, by written notice given to the Indemnitee, to undertake, conduct and control, through counsel of its own choosing which is reasonably acceptable to the Indemnitee and at its sole risk and expense, the good faith settlement or defense of such claim, and the Indemnitee shall cooperate with the Indemnitor in connection therewith; provided: (a) all settlements require the prior reasonable consultation with the Indemnitee and the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, provided that the Indemnitor may result settle any such claim without the prior consent of the Indemnitee if such settlement involves the full release of the Indemnitee and the Indemnitor agrees to pay all amounts payable pursuant to such settlement, and (b) the Indemnitee shall be entitled to participate in liability to an Indemnified Party in respect of matters embraced such settlement or defense through counsel chosen by the indemnity Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as the Indemnitor is contesting any such claim in good faith, the Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such claim at any time; provided, that in such event, the Indemnitee shall waive any right of indemnification therefor by the Indemnitor. If the Indemnitor does not make a timely election to undertake the good faith defense or settlement of the claim as aforesaid, or if the Indemnitor fails to proceed with the good faith defense or settlement of the matter after making such election, then, in either such event, the Indemnitee shall have the right to contest, settle or compromise the claim at its exclusive discretion, retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) determines in good faith that a Third Party Claim may materially and adversely affect it or any of its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) in the event that a potential Loss, damage or expense comes to the attention good faith opinion of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware counsel of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it party concludes that there may be one or more legal are defenses available to it that may be unavailable to, or inconsistent with or contrary to the interests of the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Indemnified Third Party which are different Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Indemnitee shall fully cooperate with each other in connection with the defense, including by furnishing all available documentary or in addition to those which have been asserted other evidence as is reasonably requested by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureother party.
Appears in 1 contract
Sources: Stock Purchase Agreement (IHS Inc.)
Defense. In the event any Person or entity not a party to this Agreement shall make Third Party makes a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense Loss comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall will promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "“Notice"”) to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall will have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose Party, which approval will not unreasonably be withheld. The Indemnified Party shall will have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (iA)(i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, Party and (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iiiB) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, the Indemnified Party shall will have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall will be paid by the Indemnifying Party on a current basis. No Indemnifying Party, in the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party consent will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defensebe unreasonably withheld. In the event that the Indemnifying Party shall will fail to respond within ten twenty days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall will be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall will not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's ’s defense of the action is actually prejudiced by such failure.
Appears in 1 contract
Defense. In the event If any Person or entity not a party to this Agreement shall make a claim, demand or claim liability is asserted by any third party against any Indemnified Party, the Indemnifying Party shall be entitled to participate therein and defend any action or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity under this Agreementindemnity, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, and the Indemnifying Party shall have the option, at its sole cost right to conduct and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, subject to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized 's approval in writing of outside counsel selected by the Indemnifying Party, or (iii) . After notice from the Indemnifying Party has not in fact employed counsel to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. In any action within a reasonable time; then, defended by the Indemnifying Party the Indemnified Party shall have the right to retain be represented by its own counsel at its own expense unless (1) the sole cost and expense employment of such counsel shall have been authorized in writing by the Indemnifying Party or (2) the Indemnifying Party shall not have properly employed counsel reasonably satisfactory to such Indemnified Party to have charge of the Indemnifying Party, which costs defense of such action; in each of such cases such fees and expenses shall be paid by the Indemnifying Party. In addition, if the named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Indemnified Party on a current basis. No and Indemnifying Party, in the defense of any and such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party. If any Indemnified Party will shall have been advised by counsel chosen by it that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Indemnifying Party, and if such Indemnified Party which are different from or in addition to those which have been asserted by notifies the Indemnifying Party and in writing that it elects to employ separate counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs the Indemnifying Party shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Indemnified Party, and the Indemnified Party may participate in the defense of such action, suit or proceeding and such fees and expenses shall be paid by the Indemnifying Party; it being understood, however, that the Indemnifying Party on a current basisshall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel for all such Indemnified Parties). Failure The Indemnifying Party will not, without Indemnified Party's written consent, settle or compromise any indemnifiable claim or consent to provide Notice shall not limit the rights entry of any judgment in respect thereof unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability in respect of such party to indemnification, except to Indemnifiable Claim. The parties shall cooperate in the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureall third party claims which may give rise to Indemnifiable Claims hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cinergi Pictures Entertainment Inc)
Defense. In the event If any Person civil or entity not a party administrative action that might reasonably be expected to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party Indemnifiable Claim (the an "NoticeAction") to an Indemnifying Party of such demand, claim is asserted or lawsuit, except as provided in the next sentencethreatened by a third party against any Indemnified Party, the Indemnifying Party shall have the option, at its sole cost and expense, may elect to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct control the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, thereof with experienced counsel reasonably satisfactory to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by if the Indemnifying Party, or within fifteen (iii15) days after receipt of a notice of such Action, fails to give written notice to the Indemnified Party that the Indemnifying Party has not in fact employed counsel to assume is undertaking the defense of thereof or thereafter fails to timely assume such action within a reasonable time; thendefense, then the Indemnified Party shall have the right to retain its own counsel at defend, compromise or settle the sole cost and expense Action for the account of the Indemnifying Party, which costs and expenses shall be paid . An assertion by the Indemnifying Party on of a current basisreservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. No If the Indemnifying PartyParty assumes control of the defense in an Action, it will take all steps necessary in the defense defense, prosecution, or settlement of any such demand, claim or lawsuit, litigation and will hold the Indemnified Party harmless from and against all Losses caused by or arising out of such Action. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement without except with the written consent of the Indemnified Party; provided, however, that the consent of the Indemnified Party shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnified Party by the third party of a release of the Indemnified Party from all liability in respect of such Action; (ii) there is no finding or admission of (A) any violation of law by the Indemnified Party (or any affiliate thereof), and (B) any violation of the rights of any other person; (iii) the judgment or settlement will have no effect on any other Action or claims of a similar nature that may be made against the Indemnified Party (or any affiliate thereof); and (iv) the sole form of relief is monetary damages which are paid in full by the Indemnifying Party. If any The Indemnifying Party shall conduct the defense of the Action actively and diligently, and the Indemnified Party will provide reasonable cooperation in the defense of the Action. In all cases, the party that is not assigned the right to control the defense shall have been advised by counsel chosen by it that there may be one or more legal defenses available the right to such Indemnified Party which are different from or participate in addition the defense of the Action at its own expense, subject to those which have been asserted by the reasonable direction of the other party. Each of the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party shall give all reasonable assistance to undertake the defenseother party in connection therewith. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Noticeany case, the Indemnified Party may retain counsel shall, subject to Section 12.5, make available to the Indemnifying Party and conduct its attorneys, accountants, employees, agents, advisors and consultants, at reasonable times during normal business hours, all books, records, documents, employees, agents, advisors and consultants under its control and relating to such Action or such other matter as to which the Indemnified Party is or was required to give notice. The party having control of the defense of such demandan Action shall notify the other party of every proposal, claim oral or lawsuitwritten, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyfor settlement, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failureit receives or makes.
Appears in 1 contract
Defense. In The Indemnifying Party shall have the event right to direct, through counsel of its own choosing, the defense or settlement of any Person action or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an proceeding brought against the Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentence, the Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the right, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunderClaims; provided, however, if (i) the named parties to any such proceeding (including any impleaded parties) include both that the Indemnifying Party and shall not settle any matter without obtaining the Indemnified Party's prior consent thereto if such settlement provides for any remedy other than the payment of money damages or that does not provide for a full release of the Indemnified Party or, representation regardless of both parties by the same counsel would be inappropriate due to actual or potential differing interests between themterms of such settlement, and if the Indemnifying Party has not retained separate counsel for disputes its liability with respect to the Indemnified Party, (ii) the employment of counsel by such Indemnified Third Party has been authorized in writing by the Indemnifying Party, or (iii) Claim. If the Indemnifying Party has not in fact employed counsel elects to assume the defense of any such action within claim or proceeding, the Indemnified Party may participate in such defense at its own expense. If the Indemnifying Party fails to defend or if after commencing or undertaking any such defense fails to prosecute or withdraws from such defense other than as a reasonable time; thenresult of a settlement, the Indemnified Party shall have the right to retain its own counsel direct, at the Indemnifying Party's sole cost and expense expense, through counsel of its own choosing, the Indemnifying Partydefense or settlement of any such action or proceeding; provided, which costs and expenses shall be paid by however, that if the Indemnifying Indemnified Party on a current basis. No Indemnifying Party, in assumes the defense of any such demand, claim or lawsuitproceeding pursuant to this SECTION 10.3 and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, will consent to entry of any judgment or enter into any settlement without the consent of then the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by shall give the Indemnifying Party prompt written notice thereof and counsel retained by the Indemnifying Party declines shall have the right to assert those defensesparticipate in and consent (which consent shall not be unreasonably withheld) to the settlement or assume or reassume the defense of such claim or proceeding. Notwithstanding the foregoing provisions of this SECTION 10.3(b), then, at if the election Indemnifying Party disputes its liability to the Indemnified Party and if such dispute is resolved in favor of the Indemnified PartyIndemnifying Party by final, nonappealable order of a court of competent jurisdiction, the Indemnifying Party will not have be required to bear the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees costs and expenses of any counsel retained by the Indemnified Party's defense pursuant to this SECTION 10.3(b), and the Indemnified Party to undertake the defense. In the event that shall reimburse the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which full for all costs and expenses shall be paid incurred by the Indemnifying Party on a current basisin connection with such Third Party Claim. Failure to provide Notice The party directing the defense shall not limit pursue such defense diligently and promptly. The parties shall cooperate in the rights defense of such all Third Party Claims. In connection with the defense of any Third Party Claim, each party to indemnification, except shall make available to the extent party controlling such defense any books, records, or other documents within its control that are reasonably requested in the Indemnifying Party's defense course of the action is actually prejudiced by or necessary or appropriate for such failuredefense.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Zenith National Insurance Corp)
Defense. In If the event facts pertaining to a Loss arise out of the claim of any Person or entity not a party to this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreementthird party, or in if there is any claim against a third party available by virtue of the event that a potential circumstances of the Loss, damage or expense comes to the attention of any Party in respect of matters embraced Indemnity Obligor may, by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after giving written notice by to the Indemnified Party (within 15 days following its receipt of the "Notice") to an Indemnifying Party notice of such demandclaim, claim elect to assume the defense or lawsuitthe prosecution of such claim, except as provided in including the next sentence, the Indemnifying Party shall have the option, employment of counsel or accountants at its sole cost and expense, to retain counsel for the Indemnified Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightright to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such action, but the fees and expenses of such counsel shall be at its the Indemnified Party's own expense, unless (a) the Indemnity Obligor failed to participate assume the defense or prosecution thereof within such 15-day period; or (b) the Indemnified Party determines there is a conflict of interest in the representation by counsel selected by the Indemnity Obligor, in which case the fees and expenses of counsel selected by the Indemnified Party shall be at the expense of the Indemnity Obligor. If the Indemnity Obligor assumes the defense of any suita proceeding, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (i) it will be conclusively established for purposes of the named parties Agreement that the claims made in that proceeding are within the scope of and subject to indemnification; (ii) no compromise or settlement of such claims may be effected by the Indemnity Obligor without the Indemnified Party's consent unless (A) there is no finding or admission of any such proceeding (including violation of applicable laws or any impleaded parties) include both violation of the Indemnifying Party rights of any person and no effect on any other claims that may be made against the Indemnified Party, representation of both parties and (B) the sole relief provided is monetary damages that are paid in full by the same counsel would be inappropriate due to actual or potential differing interests between them, Indemnity Obligor; and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Indemnified Party has will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, the filing of any answer by the Indemnity Obligor in order to preserve the rights of the Indemnified Party due to a filing deadline shall not in fact employed counsel itself constitute its election to assume the defense of a claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such action within a reasonable time; thenclaim, all the Indemnified Party parties to this Agreement shall have the right to retain its own counsel at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. No Indemnifying Party, cooperate in the defense or prosecution of such claim and shall furnish such records, information and testimony and shall attend such conferences, discovery proceedings and trials as may be reasonably requested in connection therewith. The Indemnity Obligor shall not be liable for any settlement of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement effected without the consent of the Indemnified Party. If any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Partyprior written consent, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurebe unreasonably withheld.
Appears in 1 contract
Defense. In Subject to the event any Person or entity not a party to limitations set forth in this Agreement shall make a demand or claim or file or threaten to file or continue any lawsuitSection 10.5(b), which demand, claim or lawsuit may result in liability to an Indemnified Party in respect of matters embraced by the indemnity under this Agreement, or in the event that of a potential Loss, damage or expense comes to the attention of any Third Party in respect of matters embraced by the indemnity under this Agreement, then the Party receiving notice or becoming aware of such event shall promptly notify the other Party in writing of the demand, claim or lawsuit. Within ten days after written notice by the Indemnified Party (the "Notice") to an Indemnifying Party of such demand, claim or lawsuit, except as provided in the next sentenceClaim, the Indemnifying Party shall have the optionright (exercisable by written notice to the Indemnified Party within ten (10) days after the Indemnified Party has given a Claim Notice of the Third Party Claim) to elect to conduct and control, through counsel of its choosing that is reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, the defense, compromise or settlement of the Third Party Claim if the Indemnifying Party (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party shall provide indemnification to the Indemnified Party in respect thereof, and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party shall not have given notice of its election to retain counsel for conduct and control the defense of the Third Party Claim within such 15 day period, (B) the Indemnifying Party shall fail to conduct such defense diligently and in good faith, (C) the Indemnified Party shall reasonably determine that use of counsel selected by the Indemnifying Party to defend any such demand, claim or lawsuit, provided that counsel who will conduct the defense of such demand, claim or lawsuit will be approved by represent the Indemnified Party whose approval will not unreasonably be withheld. The Indemnified Party shall have the rightwould present such counsel with an actual or potential conflict of interest, at its own expense, to participate in the defense of any suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, however, if (iD) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Third Party and Claim is for injunctive, equitable or other non-monetary relief against the Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and the Indemnifying Party has not retained separate counsel for the Indemnified Party, (ii) the employment of counsel by then in each such Indemnified Party has been authorized in writing by the Indemnifying Party, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; then, case the Indemnified Party shall have the right to retain control the defense, compromise or settlement of the Third Party Claim with counsel of its own counsel choice at the Indemnifying Party’s sole cost and expense expense. In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying PartyParty and the Indemnified Party shall, which costs and expenses shall cause their respective Affiliates and representatives to, cooperate fully in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be paid reasonably requested by the Indemnifying Party on a current basisor the Indemnified Party in connection therewith. No Indemnifying PartyIn addition, in the party controlling the defense of any such demand, claim or lawsuit, will consent to entry of any judgment or enter into any settlement without Third Party Claim shall keep the consent non-controlling party advised of the Indemnified Party. If status thereof and shall consider in good faith any Indemnified Party will have been advised by counsel chosen by it that there may be one or more legal defenses available to such Indemnified Party which are different from or in addition to those which have been asserted recommendations made by the Indemnifying Party and counsel retained by the Indemnifying Party declines to assert those defenses, then, at the election of the Indemnified Party, the Indemnifying Party will not have the right to continue the defense of such demand, claim or lawsuit on behalf of such Indemnified Party and will reimburse such Indemnified Party and any Person non-controlling such Indemnified Party on a current basis for the reasonable fees and expenses of any counsel retained by the Indemnified Party to undertake the defense. In the event that the Indemnifying Party shall fail to respond within ten days after receipt of the Notice, the Indemnified Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the Indemnifying Party, which costs and expenses shall be paid by the Indemnifying Party on a current basis. Failure to provide Notice shall not limit the rights of such party to indemnification, except to the extent the Indemnifying Party's defense of the action is actually prejudiced by such failurewith respect thereto.
Appears in 1 contract