Defense. With respect to any Proceeding, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense. 4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding. 4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With 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 thereof is to be made against the Indemnifying Party under such Section, shall provide the Indemnifying Party with written particulars thereof; provided that failure to provide the Indemnifying Party with such particulars shall not relieve such Indemnifying Party from any Proceedingliability which it might have on account of the indemnity provided for in this Article Seven except insofar as such failure shall prejudice such Indemnifying Party. The Indemnified Party shall also provide to the Indemnifying Party copies of all relevant documentation and, unless the Company 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 entitled, at its own expense, to participate in the Proceeding at its own expense (and, except as otherwise provided below, to the extent that it may wish, to assume) the Company defence of any such action, suit, proceeding or claim but such defence shall be conducted by counsel of good standing approved by the Indemnified Party, such approval not to be unreasonably withheld. Upon the Indemnifying Party notifying the Indemnified Party of its election so desiresto assume the defence and retaining such counsel, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company Indemnifying Party shall not be entitled liable to assume the defense Indemnified Party for any legal or other expenses subsequently incurred by it in connection with such defence other than for reasonable costs of investigation. If such defence is assumed by the Indemnifying Party, it shall, through the course thereof, provide copies of all relevant documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof and shall discuss with the Indemnified Party all significant actions proposed. No Indemnifying 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 shall have the right, at the Indemnifying Party's expense, to employ counsel of its own choice in respect of the defence of any Proceeding such action, suit, proceeding or claim if (a) brought the employment of such counsel has been authorized by the Company, Indemnifying Party in connection with such defence; or (b) as counsel retained by the Indemnifying Party or the Indemnified Party shall have advised the Indemnified Party that there may be legal defences available to it which Indemnitee has reasonably determined are different from or in addition to those available to the Indemnifying Party (in which event and to that extent, the Indemnifying Party shall not have the right to assume or direct the defence on behalf of the Indemnified Party) or that there may be a conflict of interest between Indemnitee the Indemnifying Party and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defenseIndemnified Party; or (c) the Company has not, in fact, Indemnifying Party shall not have assumed such defence and is not conducting the defense employed counsel therefor within a reasonable time after receiving notice of such Proceedingaction, suit, proceeding or claim.
Appears in 1 contract
Defense. With respect to any ProceedingAt the request of the Indemnified Party, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may Indemnifying Party shall promptly assume the costs of defense thereof with of an Indemnifiable Claim. The Indemnifying Party shall retain experienced counsel reasonably satisfactory to Indemniteethe Indemnified Party and thereafter shall control defense of the claim. HoweverNotwithstanding the foregoing, the Company Indemnified Party shall not be entitled have the right to retain counsel of its choice and control the defense of the Indemnifiable Claim under any of the following circumstances:
(i) The Indemnifying Party fails to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense an Indemnifiable Claim within five days after receiving written notice of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense existence of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.claim; or
4.2.2 After notice from the Company to Indemnitee of its election (ii) The Indemnifying Party agrees to assume the defense of an Indemnifiable Claim but either reserves its rights to challenge, 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 Proceedingimpleaded parties) include both the Indemnified Party and the Indemnifying Party and the Indemnified Party is advised by counsel that there may be one or more legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. If the Indemnifying Party does not assume such defense or the Indemnified Party has the right to control the defense of the Indemnifiable Claim, the Company will not Indemnified Party may compromise or settle the Indemnifiable Claim on behalf of and for the account and risk of the Indemnifying Party, who shall be liable bound by the result. In all cases, the party without the right to Indemnitee under this Agreement or otherwise for any Expenses control the defense of the Indemnifiable Claim may participate in excess the defense at its own expense. The parties shall cooperate in the defense of $10,000 subsequently incurred by Indemnitee in 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 Proceeding defense, any books, records or other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of documents within its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has control that are reasonably determined that there may be a conflict of interest between Indemnitee and the Company requested in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense course of such Proceedingdefense.
Appears in 1 contract
Defense. With respect to If any Proceedingclaim, demand or liability is asserted by any third party against any Indemnified Party, the Company will be ------- entitled Indemnifying Party shall have the right and shall upon the written request of the Indemnified Party, defend any Actions brought against the Indemnified Party in respect of any Indemnifiable Claims with counsel of its choice reasonably acceptable to participate the Indemnified Party and, in the Proceeding case of a Tax-related Action, tax advisors of its choice reasonably acceptable to the Indemnified Party. In any such action or proceeding, the Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding unless (a) brought by the CompanyIndemnifying Party and the Indemnified Party mutually agree in writing to the retention of such counsel, or (b) as the named parties to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee any such suit, action or proceeding (including any impleaded parties) include both the Indemnifying Party and the Company Indemnified Party, and in the reasonable judgment of the Indemnified Party, representation of the Indemnifying Party and the Indemnified Party by the same counsel would be inadvisable due to potential conflicts of interests between them. The Parties shall cooperate and may participate in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 all third-party claims which may give rise to Indemnifiable Claims hereunder. If the Company Indemnifying Party assumes the defense, Indemnitee (i) it shall furnish such information regarding Indemnitee or be conclusively established for purposes of this Agreement that the Proceeding claims made in questionthe Action are within the scope of and subject to indemnification, as but only if the Company may reasonably request and as may be required in connection with Indemnifying Party assumed the defense pursuant to clause (a) above and not clause (b), and (ii) no compromise or settlement of such Proceeding and claims may be effected by the Indemnifying Party without the Indemnified Party's written consent (which consent shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense not be unreasonably withheld) unless there is no finding or admission of any violation of legal requirement or any violation of the Proceedingrights of any Person and no effect on any other claims that may be made against the Indemnified Party, or the Company shall take all necessary steps exclusive relief provided is monetary damages that are paid in good faith full by the Indemnifying Party. If written notice is given to defend, settle or otherwise dispose an Indemnifying Party of the Proceeding.
4.2.2 After commencement of any Action and the Indemnifying Party does not, within twenty (20) days after the Indemnified Party's written notice from is given, give written notice to the Company to Indemnitee Indemnified Party of its election to assume the defense of any Proceedingsuch Action, the Company will not Indemnifying Party shall be liable to Indemnitee under this Agreement bound by any determination made in such Action or otherwise for any Expenses in excess of $10,000 subsequently incurred compromise or settlement effected by Indemnitee in the Indemnified Party. In connection with the defense of any claim, each Party shall make available to the Party controlling such Proceeding defense, any books, records or other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of documents within its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has control that are reasonably determined that there may be a conflict of interest between Indemnitee and the Company requested in the defense course of the Proceeding, but Indemnitee does not, in fact, assume and conduct the or necessary or appropriate for such defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hovnanian Enterprises Inc)
Defense. With respect (a) If the facts pertaining to a Loss arise out of the claim of any Proceedingthird party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnity Obligor may, except as otherwise provided below, by giving written notice to the extent Indemnified Party within twenty (20) days following its receipt of the Company so desiresnotice of such claim, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled elect to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement prosecution of such Proceeding claim, including the employment of counsel or accountants at its cost and shall fully cooperate with the Company in every other respectexpense. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee The Indemnified Party shall have the right to employ Indemnitee's own counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate in such Proceedingaction, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel shall be at Indemnitee's the Indemnity Obligor’s own expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; .
(b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Whether or not the Company Indemnity Obligor chooses to defend or prosecute an indemnification claim under Section 9.4(a), all the parties to this Agreement shall 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. Each party shall act in good faith and in a commercially reasonable manner in addressing any liabilities that may provide the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or basis for an indemnifiable claim.
(c) No Indemnity Obligor may settle any claim affecting an Indemnified Party without such Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. No Indemnified Party may settle any claim affecting an Indemnity Obligor without such Indemnity Obligor’s prior written consent, not to be unreasonably withheld, conditioned or delayed.
(d) In the Company has notevent 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 not be subrogated to and shall not stand in fact, assumed and is not conducting the defense place of the Indemnified Party as to any events or circumstances in respect of which the Indemnified Party may have any right or claim against such Proceedingthird party relating to such indemnified matter.
Appears in 1 contract
Defense. With respect to any Proceeding(i) In the case of a third party claim, the Company will be ------- entitled to Indemnifying Party may participate in the Proceeding at its own expense defense thereof and, except as otherwise provided belowif it so chooses and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor, to the extent the Company so desires, the Company may assume control the defense thereof of an Indemnifiable Claim with counsel reasonably satisfactory to Indemnitee. Howeverthe Indemnified Party; provided, however, that if the Indemnified Party reasonably believes that (x) a material conflict of interest between the 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 conflict, the Company Indemnifying Party's incentive to defend such claim could reasonably be expected to be materially compromised, or (y) the claim raises serious issues regarding the integrity or moral character of the Indemnified Party or any of its Affiliates, or of its of their senior management, in its or their capacity as 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 defense at its own expense. In the case of a third party claim, the Indemnifying Party shall inform the Indemnified Party within 20 days of receiving the written notice seeking indemnification whether the party elects to control the defense and irrevocably acknowledges its obligation to indemnify the Indemnified Party therefor. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party 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 endeavor in good faith to 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 Proceeding third party claim or litigation resulting therefrom within 20 days after the date it receives notice of such claim from the Indemnified Party, the Indemnified Party may defend against such claim or 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 this Section 9.3 to the contrary, if for any reason (a) brought by for example the Company, effect of the limitations set forth in Sections 9.4 or (b) as to which Indemnitee has reasonably determined 9.5 or evidence that there an Indemnifiable Loss may be a conflict of interest between Indemnitee and attributable to events before or after Closing) there is any uncertainty whether an Indemnifiable Claim will be for the Company in the defense account of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee Seller Indemnitors or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the ProceedingPurchaser, the Company shall take all necessary steps 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 or otherwise dispose such claim, at the expense of the Proceeding.
4.2.2 After notice from Indemnifying Party, but the Company 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 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 Indemnitee 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 election own expense. If, in order to assume 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 any ProceedingIPC, the Company Purchaser will not be liable to Indemnitee under this Agreement consider in good faith waiving or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the sharing its right to employ Indemniteecontrol such defense so that Dynegy's own counsel in such Proceedinginsurance rights are not lost, but all Expenses related thereto in excess of $10,000 incurred after notice from subject to the Company of its assumption condition that the insurer accepts the tender of the defense 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 covered by Section 5.18 shall be at Indemnitee's expense, unless: (a) remain subject in all respect to the employment terms of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such ProceedingSection 5.18.
Appears in 1 contract
Defense. With (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to any Proceedinga Third Party Claim, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnifying Party may, except as otherwise provided below, upon written notice thereof to the extent the Company so desiresIndemnified Party, the Company may assume control of the defense thereof of such Third Party Claim with counsel reasonably satisfactory to Indemniteethe Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. HoweverThe Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Company Indemnified Party shall not be entitled deem necessary or appropriate to protect its interests.
(ii) If the Indemnifying Party so elects to assume the defense of any Proceeding (a) brought a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or settlement of different defenses available with respect to such Proceeding and shall fully cooperate with Third Party Claim, in each case such that it is inappropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(i), the Company Non-controlling Party may participate in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of any Third Party Claim at its own expense (except to the Proceedingextent otherwise contemplated by the preceding sentence), it being understood, however, that the Company Controlling Party shall take control such defense in all necessary steps respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to defendthe Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, settle or otherwise dispose the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Proceeding.
4.2.2 After notice Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Company to Indemnitee Indemnified Party or any of its election Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of any Proceedinga Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Indemnified Party shall have the right to employ Indemnitee's own counsel in defend, compromise or settle such Proceeding, but all Expenses related thereto in excess Third Party Claim or consent to the entry of $10,000 incurred after notice from judgment with respect to such Third Party Claim at the Company of its assumption expense of the defense Indemnifying Party; provided, however, the Indemnified Party shall be at Indemnitee's expense, unless: (a) not compromise or settle such Third Party Claim or consent to the employment entry of counsel by Indemnitee has been authorized by judgment with respect to such Third Party Claim without the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense prior written consent of the ProceedingIndemnifying Party, but Indemnitee does notwhich consent shall not be unreasonably withheld, in fact, assume and conduct the defense; conditioned or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingdelayed.
Appears in 1 contract
Defense. With respect to any ProceedingUpon receipt of notice under Section 8.3.1 from the Indemnitee, the Company will be ------- entitled Indemnifying Party shall have the duty to participate in the Proceeding either compromise or defend, at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with and by counsel (reasonably satisfactory to Indemnitee, such Action. The Indemnifying Party shall promptly and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. The assumption of the defense of an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own separate counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of and to control the defense of an Action (and the Indemnifying Party shall be at Indemnitee's expensebear the reasonable fees, unless: costs, and expenses of such counsel) if:
(a) the employment use of the counsel by Indemnitee has been authorized chosen by the Company; Indemnifying Party would present such counsel with a conflict of interest;
(b) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has reasonably determined concludes that there may be a conflict of interest between Indemnitee and legal defenses available to it that are different from or additional to those available to the Company Indemnifying Party (in which case the Indemnifying Party shall not have the right to assume the defense of such Action on the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or Indemnitee's behalf);
(c) the Company has not, in fact, assumed and is Indemnifying Party does not conducting employ counsel reasonably satisfactory to the defense Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such ProceedingAction; or
(d) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the Indemnitee; provided, however, that in no event shall the Indemnifying Party be obligated to bear the fees, costs and expenses of more than one (1) separate counsel for all of the other Party's Indemnitees in such Action.
Appears in 1 contract
Defense. With respect Except as otherwise provided herein, in the case of any claim ------- asserted by a Person that is not a party to this Agreement (a "Third Party ----------- Claim"), an Indemnifying Party may elect to compromise or defend, at such ----- Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any ProceedingThird Party Claim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, it shall promptly notify the Indemnified Party and any other Indemnifying Parties of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the Company will be ------- entitled applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to participate in all the Proceeding at its own expense andIndemnified Parties. Notwithstanding the foregoing, the Indemnifying Party shall not have the right to assume control of such defense and shall pay the fees and expenses of counsel retained by the Indemnified Party, if the claim over which the Indemnifying Party seeks to assume control (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations, or (iii) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend. In any event, except as otherwise provided belowherein, any applicable Indemnified Party and any Indemnifying Party that has any liability with respect to the extent the Company so desiressuch claim may each participate, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverat its own expense, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of such Third Party Claim without, in the Proceeding and Indemnitee does in fact assume and conduct case of such Indemnified Party, any right to control such defense. If an Indemnifying Party chooses to defend any claim, the defense.
4.2.1 If the Company assumes the Indemnified Party shall make available to such Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, Indemnitee shall furnish such information regarding Indemnitee or subject to the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement receipt of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceedingappropriate confidentiality agreements.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any ProceedingExcept as otherwise provided herein, the Company will Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be ------- entitled reasonably satisfactory to participate the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to 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 Proceeding at compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its own expense andelection to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the 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 Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the 57 Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; PROVIDED, HOWEVER, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided belowherein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall 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 Company so desiresreceipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Company may assume Indemnified Party shall, subject to the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverterms and conditions of this Article X, have the Company shall not be entitled right to assume the defense of any Proceeding (a) brought by the Companysuch Third Party Claim; PROVIDED, or (b) as to which Indemnitee has reasonably determined HOWEVER, that there may be a conflict of interest between Indemnitee and the Company in the defense of event that the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election Indemnifying Party subsequently elects to assume the defense of any Proceedingsuch Third Party Claim, then the Company will not be liable to Indemnitee under provisions set forth in this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; paragraph (b) Indemnitee has reasonably determined that there may shall be a conflict of interest between Indemnitee applicable and the Company in Indemnifying Party shall, subject to the defense terms and conditions of this Article X, indemnify the Proceeding, but Indemnitee does not, in fact, assume Indemnified Party for any costs and conduct expenses incurred by the defense; or (c) Indemnified Party prior to the Company has not, in fact, assumed and is not conducting date the defense Indemnifying Party assumes control of such ProceedingThird Party Claim.
Appears in 1 contract
Defense. With In the event any 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 covered by the indemnity under this Agreement, or in the event that a potential Loss, damage or expense comes to the attention of any ProceedingParty 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 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 Company Indemnifying Party shall have the option, at its sole cost and expense, to retain counsel to defend any such demand, claim or lawsuit; provided that counsel who will conduct the defense of such demand, claim or lawsuit will be ------- entitled 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 Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding suit, action or proceeding brought against it with respect to which indemnification may be sought hereunder; provided, if (ai) brought the named parties to any such proceeding (including any interpleaded parties) include both the Indemnifying Party and the Indemnified Party, representation of both parties by the Companysame counsel would be inappropriate due to actual or potential differing interests between them, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in Indemnifying Party has not retained separate counsel for the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defenseIndemnified Party, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (aii) the employment of counsel by Indemnitee such Indemnified Party has been authorized in writing by the CompanyIndemnifying Party, which authorization will not be unreasonably withheld, or (iii) the Indemnifying Party has not in fact employed counsel to assume the defense of such action within a reasonable time; (b) Indemnitee has reasonably determined 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 a conflict of interest between Indemnitee 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 Company in Indemnifying Party declines to assert those defenses, then, at the defense election of the ProceedingIndemnified Party, but Indemnitee does not, in fact, assume and conduct the defense; or (c) Indemnifying Party will not have the Company has not, in fact, assumed and is not conducting right to continue the defense of such Proceedingdemand, 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 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 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.
Appears in 1 contract
Sources: Share Acquisition Agreement (Intelligent Highway Solutions, Inc.)
Defense. With 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 Proceedingparty of notice of the commencement of any action or the assertion of any claim by a third person which the party receiving such notice has reason to believe may result in a claim by it for indemnity pursuant to this Agreement, such party (each, an "Indemnified Party") shall give a notice of such action or claim to the 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 written correspondence from such third party to such Indemnified Party. The failure to give notice as required by the immediately preceding sentence shall not result in a waiver of any right to indemnification hereunder except to the extent the Indemnifying Party is actually and materially prejudiced by reason of such 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 Indemnified Party of such assumption. The Indemnified Party shall be entitled to participate therein after such assumption, the Company will costs 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 matters 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 Proceeding defense of such action, the cost of such participation to be at its own expense and, except as otherwise provided below, expense. The Indemnifying Party shall be obligated to pay the reasonable attorneys' fees and expenses of the Indemnified Party to the extent that such fees and expenses relate to claims as to which indemnification is due under this Section 13.5(b). The Indemnified Party shall have full rights to dispose of such action and enter into any monetary compromise or settlement; provided, however, that no such settlement shall be made without the Company so desiresprior written consent of the Indemnifying Party, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company which shall not be entitled to assume unreasonably withheld; and
(c) Both the defense Indemnifying Party and the Indemnified Party shall reasonably cooperate fully (but not including the waiver of any Proceeding (aprivileged communication) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required with one another in connection with the defense defense, compromise or settlement of any such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle claim or otherwise dispose of the Proceedingaction.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any Proceeding, the Company will be ------- entitled to participate in the Proceeding at its own expense andAn indemnifying Party shall, except as otherwise provided belowin the immediately following sentence and the last sentence of this paragraph, to the extent the Company so desires, the Company may assume the defense thereof of such Claim, with counsel reasonably satisfactory to Indemnitee. However, the Company indemnified Party to represent the indemnified Party in such proceeding and shall not be entitled to assume pay the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee fees and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement disbursements of such Proceeding and shall fully cooperate with the Company in every other respectcounsel related to such proceeding. Except as provided in Section 4.3 belowIn any such proceeding, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee indemnified Party shall have the right to employ Indemnitee's retain its own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company participate in the defense of the Proceedingsuch Claim, but Indemnitee does the fees and expense of such counsel shall be at the expense of such indemnified Party unless: (i) the indemnifying Party and the indemnified Party shall have mutually agreed to the retention of such counsel; or (ii) the named Parties to any such proceeding (including any impleaded parties) include both the indemnifying Party and the indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is agreed that the indemnifying Party shall not, in factrespect of the legal expense of any indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, assume be liable for the fees and conduct expenses of more than one separate firm (in addition to any local counsel) for all such indemnified Parties and that all such fees and expenses shall be reimbursed as they are incurred. The indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there is a final judgment for the defenseplaintiff, the indemnifying Party agrees to indemnify the indemnified Party from and against any Losses by reason of such settlement or judgment. No indemnifying Party shall, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified Party is or could have been a party and indemnity could have been sought hereunder by such indemnified Party: (x) if such settlement; (A) involves any form of relief other than the payment of money, (B) involves any finding or admission of any violation of any Law or any of the rights of any Person or (cC) has any adverse effect on any other Claims that have been or may be made against the indemnified Party, or (y) if such settlement involves only the payment of money, unless it includes an unconditional release of such indemnified Party of all liability on claims that are the subject of such proceeding. An indemnified Party may assume control of the defense of any Claim: (1) if it irrevocably waives its right to indemnity under this Section 20, or (2) if, without prejudice to its full right to indemnity under this Section 20: (aa) the Company has notindemnifying Party fails to provide reasonable assurance to the indemnified Party of its financial capacity to defend or provide indemnification with respect to such Claim, (bb) the indemnified Party determines in factgood faith that there is a reasonable likelihood that a Claim would materially and adversely affect it or any other indemnitees other than as a result of monetary damages that would be fully reimbursed by an indemnifying Party under the Agreement, assumed and is not conducting or (cc) the indemnifying Party refuses or fails to timely assume the defense of such ProceedingClaim; or (3) in case of Customer, pursuant to Section 20.4.
Appears in 1 contract
Defense. With respect to any Proceeding, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding Proceeding, (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. respect Except as provided in Section SECTION 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses CLAUSES (aA) through THROUGH (cC) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has does not, in fact, assumed assume and is not conducting conduct the defense of such Proceeding.
4.2.3 Any Expenses incurred by the Company in defense of the Proceeding under this SECTION 4.2 (except in a situation described in CLAUSE (A), (B) OR (C) of SECTION 4.2.2) shall be considered Expenses advanced by the Company to Indemnitee under SECTION 3 above.
Appears in 1 contract
Sources: Indemnification Agreement (American Materials & Technologies Corp)
Defense. With respect If any Action that might reasonably be expected to result in an Indemnifiable Claim is asserted or threatened by a third party against any ProceedingIndemnified Party, the Company will be ------- entitled Indemnifying Party may elect to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume control the defense thereof with experienced counsel reasonably satisfactory to Indemniteethe Indemnified Party. HoweverNotwithstanding the foregoing, if the Company Indemnifying Party, within fifteen (15) days after receipt of a notice of such Action fails to give written notice to the Indemnified Party that the Indemnifying Party shall undertake the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not be entitled constitute a failure to assume give written notice that it shall undertake such defense. If, after the Indemnifying Party has undertaken the defense of any Proceeding the Action, the Indemnified Party reasonably believes (aand gives notice thereof to the Indemnifying Party) brought by that an Indemnifiable Claim may materially adversely affect the Companybusiness or operations of the Indemnified Party, or (b) as then the Indemnified Party shall have the right to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company participate in the defense of the Proceeding Action at its own expense, subject to the reasonable direction of the other party. Each of the Indemnifying Party and Indemnitee does in fact assume and conduct the defense.
4.2.1 If Indemnified Party shall give all reasonable assistance to the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required other party in connection with therewith. In any case, the defense Indemnified Party shall, subject to Section 10.10, make available to the Indemnifying Party and 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 settlement such other matter as to which the Indemnified Party is or was required to give notice. The party having control of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of an Action shall notify the Proceedingother party of every proposal, the Company shall take all necessary steps in good faith to defendoral or written, settle for settlement, which it receives or otherwise dispose of the Proceedingmakes.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any ProceedingIf a third party action, suit, claim or demand is involved, then, upon receipt of the Indemnification Notice, the Company will Indemnitor shall, at its expense and through counsel of its choice, promptly assume and have sole control over the litigation, defense or settlement (the "Defense") of the Indemnification Matter, except that (a) the Indemnitee may, at its option and expense and through counsel of its choice, participate in (but not control) the Defense; (b) if the Indemnitee reasonably believes that the handling of the Defense by the Indemnitor may have a material adverse effect on the Indemnitee, its business or financial condition, or its relationship with any customer, prospect, supplier, employee, salesman, consultant, agent or representative, then the Indemnitee may, at its option and expense and through counsel of its choice, assume control of the Defense, provided that the Indemnitor shall be ------- entitled to participate in the Proceeding Defense at its own expense andand through counsel of its choice, except as otherwise and provided belowfurther that the Indemnitee shall not consent to any judgment or agree to any settlement without the Indemnitor's prior written consent, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company which consent shall not be entitled unreasonably withheld or delayed; (c) the Indemnitor shall not consent to assume the defense of any Proceeding (a) brought by the CompanyJudgment, or agree to any settlement, without the Indemnitee's prior written consent provided that, if the Indemnitee withholds its consent to any monetary Judgment or monetary settlement which is acceptable to the Indemnitor and which does not exceed the limitation set forth in Section 12.4.2, then the Indemnitor's liability with respect to such Indemnification Matter shall be limited to such monetary amount; (bd) as if the Indemnitor does not promptly assume control over the Defense or, after doing so, does not continue to which prosecute the Defense in good faith, the Indemnitee has reasonably determined may, at its option and through counsel of its choice, but at the Indemnitor's expense, assume control over the Defense provided that there may the Indemnitor shall continue to be a conflict of interest between obligated to indemnify the Indemnitee with respect thereto. In any event, the Indemnitor and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required fully cooperate with each other in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 belowDefense, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceedingincluding, but not limited to, by furnishing all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized available documentary or other evidence as is reasonably requested by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingother.
Appears in 1 contract
Sources: Merger Agreement (Mediq Inc)
Defense. With respect If any of the indemnified parties is made or threatened to be ------- made a defendant in or party to any Proceedingaction 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 Paragraph I (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Company will be ------- entitled indemnified party or parties shall give prompt notice thereof to participate in the Proceeding indemnifying party; provided that the failure to give such notice shall not affect the indemnified -------- party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its own expense andexpense, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, such claim or (b) as any litigation to which Indemnitee has reasonably determined that there 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 between Indemnitee interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Company indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defenseany such claim or litigation, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in questionnot, as the Company may reasonably request and as may be required in connection except with the defense or settlement approval of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 beloweach indemnified party, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith consent to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense entry of any Proceeding, judgment or enter into any settlement which does not include as an unconditional term thereof the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized giving by the Company; (b) Indemnitee has reasonably determined that there may be claimant or plaintiff to such indemnified party or parties of a conflict of interest between Indemnitee full and the Company complete release from all liability in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; respect to such claim or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedinglitigation.
Appears in 1 contract
Defense. With respect to (a) Promptly after the receipt by any Proceeding, the Company will be ------- person entitled to participate in indemnification under Section 9.2 and 9.3 herein of notice of (i) any claim or (ii) the Proceeding at its own expense andcommencement of any action or proceeding, except as otherwise provided belowsuch 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 extent "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the Company so desires, commencement of such action or proceeding and shall permit the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnifying Party to assume the defense of any Proceeding (a) brought by such claim or any proceeding or litigation resulting from such claim, unless the Company, action or (b) as to which Indemnitee has reasonably determined that proceeding seeks an injunction or other similar relief against the Aggrieved Party or there may be is a conflict of interest between Indemnitee it and the
(b) If the Company in Indemnifying Party assumes the defense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Proceeding and Indemnitee does Aggrieved Party, the obligations of the Indemnifying Party as to such claim shall be limited to taking all steps necessary in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding claim or litigation resulting therefrom and shall fully cooperate 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 the Company such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of such claim or litigation provided that the ProceedingIndemnifying Party shall direct and control the 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 Company shall take all necessary steps in good faith defense of such claim or any litigation resulting therefrom, consent to defendentry of any judgment, settle or otherwise dispose except with the written consent of the ProceedingAggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
4.2.2 After notice from (c) If the Company to Indemnitee of its election to Indemnifying Party shall not assume the defense of any Proceedingsuch claim or litigation resulting therefrom, the Company will not be liable Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to Indemnitee under this Agreement the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise for any Expenses in excess of $10,000 subsequently otherwise, as incurred by Indemnitee the Aggrieved Party in connection with the defense against or settlement of such Proceeding other than reasonable costs claim or litigation. No settlement of investigation claim or as otherwise provided in clauses (a) through (c) belowlitigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Indemnitee If no settlement of the claim or litigation is made, the Indemnifying Party shall have promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to employ Indemnitee's own counsel such claim or in such Proceedinglitigation and of all expenses, but all Expenses related thereto in excess of $10,000 legal or otherwise, as incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the Proceeding, but Indemnitee does not, in fact, assume claim has been made and conduct delivered within the defense; or (c) period of the Company has not, in fact, assumed and is not conducting the defense applicable statute of such Proceedinglimitations.
Appears in 1 contract
Defense. With respect to any ProceedingIf a third‑party action, suit, claim or demand (a “Third Party Claim”) is involved, then, upon receipt of the Indemnification Notice, the Company will 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 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 such settlement or defense through counsel chosen by the Proceeding at its own expense and, except Indemnitee (the fees and expenses of such counsel shall be borne by the Indemnitee). So long as otherwise provided below, to the extent the Company so desiresIndemnitor is contesting any such claim in good faith, the Company may assume Indemnitee shall not pay or settle any such claim; provided, however, that notwithstanding the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverforegoing, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel pay or settle any such claim at any time; provided, that in such Proceedingevent, but all Expenses related thereto in excess the Indemnitee shall waive any right of $10,000 incurred after notice from indemnification 58 therefor by the Company of its assumption 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 be have the right to contest, settle or compromise the claim at Indemnitee's expenseits exclusive discretion, unless: retaining its right to seek indemnification from Indemnitor. In addition, if an Indemnitee (a) the employment determines in good faith that a Third Party Claim may materially and adversely affect it or any of counsel by Indemnitee has been authorized by the Company; its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, or (b) Indemnitee has reasonably determined in the good faith opinion of counsel of such party concludes that there are defenses available to it that may be a conflict unavailable to, or inconsistent with or contrary to the interests of interest between the Indemnitor, the Indemnitee may, by notice to the Indemnitor, retain the exclusive right to defend, compromise or settle such Third Party Claim, retaining its right to seek indemnification from Indemnitor. In any event, the Indemnitor and the Company Indemnitee shall fully cooperate with each other in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct connection with the defense; , including by furnishing all available documentary or (c) other evidence as is reasonably requested by the Company has not, in fact, assumed and is not conducting the defense of such Proceedingother party.
Appears in 1 contract
Sources: Stock Purchase Agreement
Defense. With respect to any ProceedingUpon receipt of notice under Subsection (a) from the Indemnitee, the Company Indemnifying Party will be ------- entitled have the duty to participate in the Proceeding either compromise or defend, at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 10 and of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable costs of investigation and cooperation. However, the Company Indemnitee will have the right to employ separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if:
(i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party will not be entitled have the right to assume the defense of any Proceeding such Action on the Indemnitee’s behalf);
(aiii) brought by the CompanyIndemnifying Party does not employ counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within thirty (30) days after the Indemnitee’s notice of such Action; or
(iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; provided, or however, that in no event shall the Indemnifying Party be obligated to bear the fees, costs and expenses of more than one (b1) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense separate counsel for all of the Proceeding and Indemnitee does other Party’s Indemnitees in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respectAction. Except as provided in Section 4.3 below, if the Company assumes the defense of the ProceedingIn any event, the Company shall take all necessary steps in good faith Indemnitee may elect to defendbe represented by separate counsel, settle or otherwise dispose of at its expense; provided, that the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption Indemnifying Party retains control of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingexcept as provided above.
Appears in 1 contract
Sources: Settlement and Termination Agreement (Amylin Pharmaceuticals Inc)
Defense. With respect 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 Proceedingevent within five (5) Business Days after receiving any written notice from a third party; provided, however, that no delay on the Company will be ------- entitled to participate part of the Indemnified Party in notifying the Proceeding at its own expense andIndemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless, except as otherwise provided below, and then solely to the extent the Company so desiresthat, the Company may assume Indemnifying Party is materially prejudiced thereby. Once the defense thereof with counsel reasonably satisfactory Indemnified Party has given notice of the matter to Indemnitee. Howeverthe Indemnifying Party, the Company shall not be entitled Indemnified Party may, subject to the Indemnifying Party's rights to assume the defense of thereof, defend against the matter in any Proceeding manner it reasonably may deem appropriate. In the event the Indemnifying Party notifies the Indemnified Party (a) brought by after the Company, or (b) as to which Indemnitee date the Indemnified Party has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense given notice of the Proceeding and Indemnitee does in fact assume and conduct matter) that the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with Indemnifying Party is assuming the defense of such Proceeding other than reasonable costs matter, the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of investigation or as otherwise provided in clauses (a) through (c) belowits choice reasonably satisfactory to the Indemnified Party. Indemnitee Notwithstanding the foregoing, the Indemnified Party shall have the right to employ Indemnitee's its own counsel in any such Proceedingcase, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel shall be at Indemnitee's expense, unless: the expense of the Indemnified Party unless (ai) the employment of such counsel by Indemnitee has shall have been authorized in writing by the Company; Indemnifying Party, (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (cii) the Company has not, in fact, assumed Indemnifying Party shall not have employed counsel to fully and is not conducting properly take charge of the defense of such Proceedingaction within a reasonable 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 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 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 consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not consent to the entry of a judgment with respect to any 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 (not to be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Purchase Agreement (NHP Inc)
Defense. With respect to any ProceedingExcept as otherwise provided herein, the Company will Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be ------- entitled reasonably satisfactory to participate the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to 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 Proceeding at compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its own expense andelection to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the 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 Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim insofar as it relates to the Indemnified Party. In such an event, the Indemnifying Party 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 third 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. In any event, except as otherwise provided below, to the extent the Company so desiresherein, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee Indemnified Party and the Company Indemnifying Party may each participate, at its own expense, in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 such Third Party Claim. If the Company assumes Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, Indemnitee shall furnish such information regarding Indemnitee or subject to the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement receipt of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceedingappropriate confidentiality agreements.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With The Indemnified Party intending to claim indemnification under this ARTICLE VIII shall promptly notify the Indemnifying Party of any Action or Loss in respect of which the Indemnified Party intends to any Proceedingclaim such indemnification, and the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company Indemnifying Party shall not be entitled to assume and control the defense of any Proceeding thereof (a) brought with counsel selected by the CompanyIndemnifying Party) whether or not such Action is rightfully brought; provided, or (b) as to which Indemnitee has reasonably determined however, that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee an Indemnified Party shall have the right to employ Indemnitee's retain its own counsel, with the fees and expenses to be paid by the Indemnified Party, unless Indemnifying Party does not assume the defense, in which case the reasonable fees and expenses of counsel retained by the Indemnified Party shall be paid by the Indemnifying Party. The Indemnified Party, and its employees and agents, shall cooperate fully with the Indemnifying Party and its legal representatives in such Proceeding, but all Expenses related thereto in excess the investigation and defense of $10,000 incurred after notice from any Action or Loss. The Indemnifying Party shall not be liable for the Company indemnification of its assumption any Action or Loss settled (or resolved by consent to the entry of judgment) without the written consent of the defense Indemnifying Party. Also, if the Indemnifying Party shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in control the defense of any such Action, the ProceedingIndemnifying Party shall have the right to settle such Action; provided, but Indemnitee does notthat the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Action unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, in factno requirement that the Indemnified Party admit fault or culpability, assume and conduct no adverse effect on any other claims that may be made by or against the defense; or Indemnified Party and (cB) the Company has not, sole relief provided is monetary damages that are paid in fact, assumed full by the Indemnifying Party or its insurer and is such settlement does not conducting require the defense of such ProceedingIndemnified Party to take (or refrain from taking) any action.
Appears in 1 contract
Sources: Royalty Stream and Milestone Payments Purchase Agreement (Ligand Pharmaceuticals Inc)
Defense. With respect 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 SFI Indemnitee is entitled to any Proceedingbe indemnified pursuant to Section 5 hereof, the Company will Preferred Shareholders may elect to assume the defense or the prosecution thereof. The Preferred Shareholders shall have 30 days (which shall be ------- shortened to 15 days in the case of a commenced lawsuit or proceeding) after receipt of a Notice of Claim to undertake to conduct and control, through counsel of their own choosing as designated by the Shareholder Representative and at their sole 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 participate in such settlement or defense through counsel chosen by it, provided that the Proceeding at its own expense and, except as otherwise fees and expenses of such counsel shall be borne by the SFI Indemnitee(s); and provided below, to further that the extent the Company so desires, the Company may 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 claim if as a result thereof with counsel the SFI Indemnitee would become subject to injunctive, declaratory or other equitable relief or the business of the SFI Indemnitee would be materially adversely affected in any manner. Whether or not the Preferred Shareholders choose 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 satisfactory requested in connection therewith. Such cooperation shall include the retention and the provision of records and information which are reasonably relevant to Indemniteesuch 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 such claim effected without their prior written consent, which shall not be unreasonably withheld. However, if the Company shall not be entitled Preferred Shareholders, fail to defend such claim within the time period necessary to preserve the rights and defense of the SFI Indemnitee, the SFI Indemnitee will have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the Preferred Shareholders, subject to the right of the Preferred Shareholders to assume the defense of such claim at any Proceeding time within the 30-day time period after receiving Notice of Claim . If a claim is based on any suit or proceeding by a third party for infringement which gives rise to an IP Claim (adefined in Section 5) brought by resulting in SFI's use of the CompanySoftware (defined in Section 2.14 of the Merger Agreement) being enjoined or otherwise restricted, the Preferred Shareholders, if the Preferred Shareholders elect through the Shareholder Representative to assume defense of such proceeding after receiving notice hereunder, shall be entitled at their sole expense to do any of the following: (i) procure for SFI, Clarus CSA, Inc. and their licensees the unrestricted right to continue using the 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 (biv) pay the indemnified party's claim as to provided in this Agreement, provided that any settlement under this sentence shall require SFI's prior written approval which Indemnitee has reasonably determined that there may shall not be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee unreasonably withheld. SFI shall furnish such information regarding Indemnitee comply with any settlement or the Proceeding in question, as the Company may reasonably request and as may be required court order made in connection with such proceeding in the defense or foregoing sentence provided that such compliance by SFI shall not limit the Preferred Shareholder's indemnification obligations hereunder. No Preferred Shareholder shall be liable for any settlement of any such Proceeding and claim effected without its prior written consent, which shall fully cooperate with the Company in every other respectnot be unreasonably withheld. Except as provided in Section 4.3 below, if the Company assumes the defense Before any claim may be brought against any of the ProceedingPreferred Shareholders hereunder, or under the Company Merger Agreement, all the Escrow Funds shall take all necessary steps in good faith be used first to defend, settle or otherwise dispose pay any claims made under Article IX of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Merger Agreement or otherwise this Agreement, and SFI hereby authorizes the Preferred Shareholders to settle such claims without consent of SFI to the extent the Escrow Funds will fully satisfy such claim. Preferred Shareholders may also settle any claim for any Expenses 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 $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee maximum liability amounts shall have the right to employ Indemniteerequire SFI's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingprior written consent.
Appears in 1 contract
Defense. With respect to any Proceeding, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company The Indemnifying Party shall not be entitled to assume the defense and control of any Proceeding action giving rise to an Indemnified Party's claim for indemnification under Article XI unless (ax) brought by the CompanyIndemnified Party reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification is likely to be materially detrimental to or materially injure the Indemnified Party's future business prospects or (by) the claim seeks an injunction or equitable relief against the Indemnified Party that is likely to have a material adverse effect on the business of the Indemnified Party, taken as a whole. If the Indemnifying Party assumes the defense of any Indemnifiable Claim, it shall retain experienced counsel reasonably satisfactory to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee the Indemnified Party and the Company Indemnified Party may participate in the defense of such claim and employ counsel of its choice for such purpose; provided that the Proceeding fees and Indemnitee does in fact assume expenses of such separate counsel shall be borne by the Indemnified Party (other than any fees and conduct expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense.
4.2.1 ). If the Company assumes the Indemnifying Party does not assume such defense, Indemnitee shall furnish such information regarding Indemnitee the Indemnified Party may compromise or settle the Proceeding in question, as claim on behalf of and for the Company may reasonably request account and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense risk of the ProceedingIndemnifying Party, who shall be bound by the Company result; provided, however, that the Indemnifying Party (i) shall take all necessary steps in good faith be responsible only for the reasonable costs of defense and (ii) shall be entitled to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee participate (at its cost and with counsel of its election to assume choice) in the defense of any ProceedingAction in which the Indemnified Party retained the defense thereof under clause (x) or (y) of the first sentence of this Section 11.3(b); and provided further, that the Company will Indemnifying Party shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess settlement or compromise of $10,000 subsequently incurred by Indemnitee in connection with any such Action of which the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee Indemnified Party has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct retained the defense; or , that is effected without its prior written consent (c) the Company has not, in fact, assumed and is which consent shall not conducting the defense of such Proceedingbe withheld unreasonably).
Appears in 1 contract
Defense. With respect to If any Proceedingsuch claim is brought against an indemnified party, the Company indemnifying party will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, and to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverthe extent that it may wish, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election to assume the defense thereof, the Company indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless the indemnifying party has failed to assume and diligently prosecute the defense of such claim. Notwithstanding any of the foregoing to the contrary, the indemnified party will be entitled to select its own counsel and assume the defense of any Proceeding action brought against it if the indemnifying party fails to select counsel, the expenses of such defense to be paid by the 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 in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified party. No indemnifying party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) brought by without the Companyconsent of the 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 the claimant or plaintiff to which Indemnitee has reasonably determined that there may be such indemnified party of a conflict release from all liability with respect to such claim. No indemnified party shall consent to entry of interest between Indemnitee and the Company in any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying party, without the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement consent of such Proceeding and indemnifying party, which consent shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingunreasonably withheld.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Contango Oil & Gas Co)
Defense. With respect If any of the indemnified parties is made or threatened ------- to be made a defendant in or party to any Proceedingaction or proceeding, judicial or administrative, instituted by any third Person for the liability under which or the costs or expenses of which any of the indemnified parties is entitled to be indemnified pursuant to Paragraph 18 (any such third party action or proceeding being referred to as an "Indemnification Claim"), the Company will be ------- entitled indemnified party or parties shall give prompt notice thereof to participate in the Proceeding indemnifying party; provided -------- that the failure to give such notice shall not affect the indemnified party or parties' ability to seek indemnification hereunder unless such failure has materially and adversely affected the indemnifying party or parties' ability to prosecute successfully an Indemnification Claim. Each indemnified party shall permit the indemnifying party, at its own expense andexpense, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, such claim or (b) as any litigation to which Indemnitee has reasonably determined that there this Paragraph 18.4 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 between Indemnitee interest, may not adequately represent, the indemnified party or parties' interests), to participate in such claim, action or proceeding and to be represented by attorneys of its or their own choosing. If the Company indemnified party or parties elects to participate in such defense, such party or parties will cooperate with the indemnifying party in the conduct of such defense. The indemnified party or parties may not concede, settle or compromise any Indemnification Claim without the consent of the indemnifying party. The indemnifying party, in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defenseany such claim or litigation, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in questionnot, as the Company may reasonably request and as may be required in connection except with the defense or settlement approval of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 beloweach indemnified party, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith consent to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense entry of any Proceeding, judgment or enter into any settlement which does not include as an unconditional term thereof the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized giving by the Company; (b) Indemnitee has reasonably determined that there may be claimant or plaintiff to such indemnified party or parties of a conflict of interest between Indemnitee full and the Company complete release from all liability in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; respect to such claim or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedinglitigation.
Appears in 1 contract
Sources: Asset Assignment Agreement (Fox Kids Worldwide Inc)
Defense. With Except as set forth in Section 11.5(d) hereof, if any action, suit or proceeding is commenced, or any claim or demand is asserted, by a third party not Affiliated with any party hereto against a party hereto (the "Indemnitee") in respect of which the Indemnitee proposes to any Proceedingdemand indemnification under Section 11.1 or 11.2 above, the Company will be ------- entitled party from which indemnification is sought (the "Indemnitor") shall have the right 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 the Indemnitee's expense) in the Proceeding at its own expense anddefense, except as otherwise provided belowcompromise or settlement thereof; provided, to however, if the extent the Company so desiresclaim or demand is one for which both parties hereto are responsible, the Company may then both parties shall jointly assume the defense thereof with counsel reasonably satisfactory 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 failure to provide such notice shall not affect the Indemnitee. However's right to indemnification hereunder, except to the Company extent the Indemnitor shall have been prejudiced as a result of such failure (and the Indemnitor shall not be entitled 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 any Proceeding (a) brought and contest such action with counsel chosen by it and approved by the CompanyIndemnitor, or (b) as which approval shall not be unreasonably withheld, in which case the Indemnitor shall be entitled to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company participate in the defense of such action (the Proceeding 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 does to the extent that such fees and expenses relate to claims as to which indemnification is due under this Article XI and subject to the limitations contained in fact assume this Agreement. Both the Indemnitor and conduct the defense.
4.2.1 If the Company assumes the Indemnitee shall cooperate fully in all respects with one another in any such defense, Indemnitee 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 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 furnish compromise or settle any such information regarding Indemnitee action, suit, proceeding, claim or demand without prior written consent of the Proceeding in questionother party, as the Company which consent shall not be unreasonably withheld or delayed, provided, however, that a party may reasonably request and as may be required in connection so compromise or settle, after consultation with the defense other party, (i) if such compromise or settlement involves solely the payment of money damages and/or the granting of releases, provided that no such Proceeding and compromise, settlement or release shall fully cooperate acknowledge liability for future acts or obligate any ▇▇▇▇▇▇▇▇ Indemnitee with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense respect to any post-Closing activities of the ProceedingBusiness or, except for the Company shall take all necessary steps in good faith Assumed Liabilities, obligate any Purchaser Indemnitee with respect to defend, settle or otherwise dispose any pre-Closing activities of the Proceeding.
4.2.2 After notice from Business, (ii) if all claimants provide a release (reasonably acceptable to such Indemnitees) in favor of Indemnitees, and (iii) if all claimants agree in writing to maintain the Company facts and circumstances of the settlement confidential to Indemnitee of its election the extent permitted by applicable law). This Section 11.3 shall not apply to assume the defense direct claims of any Proceeding▇▇▇▇▇▇▇▇ Indemnitee against Purchaser or Silgan or of any Purchaser Indemnitee against ▇▇▇▇▇▇▇▇, the Company will that are not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred based upon claims asserted by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingthird parties.
Appears in 1 contract
Defense. With respect to any ProceedingExcept as otherwise provided herein, the Company will Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be ------- entitled reasonably satisfactory to participate the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to 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 Proceeding at compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its own expense election to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the 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 Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim, or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to be represented by counsel selected by it. In such an event, the Indemnifying Party 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 third 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 case of a settlement or compromise by the Indemnified Party, the Indemnifying Party has abandoned the defense of such Third Party Claim) over the objection of the other, provided, however, that consent to settlement or compromise shall not be unreasonably delayed or withheld. In any event, except as otherwise provided below, to the extent the Company so desiresherein, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee Indemnified Party and the Company Indemnifying Party may each participate, at its own expense, in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 such Third Party Claim. If the Company assumes Indemnifying Party chooses to defend any claim, the Indemnified Party shall make available to the Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, Indemnitee shall furnish such information regarding Indemnitee or subject to the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement receipt of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceedingappropriate confidentiality agreements.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any Proceeding, the OF CLAIMS -- The Company will shall be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, defense of any Indemnifiable Claim or to the extent the Company so desires, the Company may assume the defense thereof thereof, with counsel reasonably satisfactory to Indemnitee. However; provided, the Company shall not be entitled to assume the defense of any Proceeding however, that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) brought the use of counsel chosen by the CompanyCompany to represent Indemnitee would present such counsel with an actual or potential conflict, or (b) as to which the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee has reasonably determined and Indemnitee shall conclude that there may be a conflict of interest between Indemnitee and one or more legal defenses available to him or her that are different from or in addition to those available to the Company in or (c) any such representation by such counsel would be precluded under the defense applicable standards of the Proceeding and Indemnitee does in fact assume and professional conduct the defense.
4.2.1 If the Company assumes the defensethen prevailing, then Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 belowentitled 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 assumes the defense of the Proceeding, the Company's expense. The Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses amounts paid in excess settlement of $10,000 subsequently incurred by 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 in connection with is or could have been a party unless such settlement solely involves the defense payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) belowIndemnifiable Claim. Neither the Company nor Indemnitee shall have the right unreasonably withhold its consent to employ any proposed settlement; provided, however, that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of any Proceeding, such Action in accordance herewith in any manner that such party reasonably may request. If the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company Indemnifying Party so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume assumes the defense of any Proceeding such Action, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party unless (a) brought by the CompanyIndemnifying Party has specifically agreed to pay such fees and expenses, or (b) as any relief other than the payment of money damages is sought against the Indemnified Party or (c) the Indemnified Party shall have been advised by its counsel that there may be one or more legal defenses available to which Indemnitee has reasonably determined it that are different from or additional to those available to the Indemnifying Party or that there may be a conflict of interest between Indemnitee the Indemnifying Party and the Company Indemnified Party in the conduct of the defense of such Action (in either of which cases the Proceeding and Indemnitee does in fact assume and conduct Indemnifying Party shall not have the defense.
4.2.1 If the Company assumes right to direct the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense compromise or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense Action on behalf of the ProceedingIndemnified Party), and in any such case the Company reasonable fees and expenses of such separate counsel shall take all necessary steps in good faith to defendbe borne by the Indemnifying Party, settle or otherwise dispose of it being understood and agreed, however, that the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will Indemnifying Party shall not be liable to Indemnitee under this Agreement or otherwise for the fees and expenses of more than one separate firm of attorneys at any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection time for the Indemnified Party together with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee its Affiliates, unless there shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee the Indemnified Party and an Affiliate thereof, in which case the Company 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 Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party shall have failed, after reasonable notice thereof, to undertake control of such Action in the defense manner provided above in this Section 7.4. The Indemnifying Party shall not, without the written consent of the ProceedingIndemnified Party, but Indemnitee does notsettle 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 or may be sought against any Indemnified Party, in fact, assume and conduct the defense; or (cy) that does not include as an unconditional term thereof the Company has notgiving by the claimant, in factparty conducting such investigation, assumed and is not conducting the defense plaintiff or petitioner to such Indemnified Party of a release from all liability with respect to such ProceedingAction.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Unitedglobalcom Inc)
Defense. With respect If the facts pertaining to a Loss arise out of the claim of any Proceedingthird party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnity Obligor may, except as otherwise provided below, by giving written notice to the extent Indemnified Party within 15 days following its receipt of the Company so desiresnotice of such claim, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled elect to assume the defense or the prosecution of such claim, including the employment of counsel or accountants at its cost and expense. The Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnity Obligor in any Proceeding such action and to participate in such action, but the fees and expenses of such counsel shall be at the Indemnified Party's own expense, unless (a) brought by the Company, Indemnity Obligor failed to assume the defense or prosecution thereof within such 15-day period; or (b) as to which Indemnitee has reasonably determined that the Indemnified Party determines there may be is a conflict of interest between Indemnitee in the representation by counsel selected by the Indemnity Obligor, in which case the fees and expenses of counsel selected by the Company in Indemnified Party shall be at the expense of the Indemnity Obligor. If the Indemnity Obligor assumes the defense of a proceeding, (i) it will be conclusively established for purposes of the Proceeding Agreement that the claims made in that proceeding are within the scope of and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense subject to indemnification; (ii) no compromise or settlement of such Proceeding and shall fully cooperate with claims may be effected by the Company in every other respect. Except as provided in Section 4.3 below, if Indemnity Obligor without the Company assumes the defense Indemnified Party's consent unless (A) there is no finding or admission of any violation of applicable laws or any violation of the Proceedingrights 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 Indemnity Obligor; and (iii) the Indemnified Party will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, the Company shall take all necessary steps filing of any answer by the Indemnity Obligor in good faith order to defend, settle or otherwise dispose preserve the rights of the Proceeding.
4.2.2 After notice from the Company Indemnified Party due to Indemnitee of a filing deadline shall not in itself constitute its election to assume the defense of any Proceedinga claim hereunder. Whether or not the Indemnity Obligor chooses so to defend or prosecute such claim, all the Company will parties to this Agreement shall 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 to Indemnitee under this Agreement or otherwise for any Expenses in excess settlement of $10,000 subsequently incurred by Indemnitee in connection with the defense of any such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee claim effected without its prior written consent, which shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall not be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingunreasonably withheld.
Appears in 1 contract
Defense. With respect Subject to any Proceedingthe terms of this Agreement, at its option, the Company will be ------- entitled to participate in Indemnitor shall have the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled right to assume the defense sole control of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with any Claim solely for monetary damages by giving written notice to the Company in every other respectIndemnitee within ten (10) days after the Indemnitor’s receipt of a Claim notice under Section 10.3(a). Except as provided in Section 4.3 below, if the Company assumes The assumption of the defense of a Claim by the ProceedingIndemnitor shall be construed as an acknowledgment that the Indemnitor is liable to indemnify the Indemnitee in respect of the Claim. Regardless of whether the Indemnitor chooses to defend or prosecute any Claim, the Company Indemnitee shall, and shall take all necessary steps cause each Melior Indemnified Party or Biodexa Indemnified Party, as applicable, to, cooperate fully with the Indemnitor and its legal representatives in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense investigation of any Proceedingaction with respect to a Claim covered by this indemnification, including by (a) delivering to the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred Indemnitor all original notices and documents (including court papers) received by the Indemnitee in connection with the Claim, and (b) furnishing such records, information and testimony, and providing such witnesses and attending such conferences, discovery proceedings, hearings, trials and appeals, in each case, as may be reasonably requested in connection with such Claim. In the case where the Indemnitor has assumed the defense of any Claim pursuant to this Section 10.3, the Indemnitee may participate in, but not control, at its sole cost and expense (subject to the following sentence), the Indemnitor’s defense of any Claim with counsel of the Indemnitee’s own selection. Should the Indemnitor assume the defense of a Claim, the Indemnitor shall not be liable to the Indemnitee for any legal expenses subsequently incurred by such Proceeding other than reasonable costs Indemnitee in connection with the analysis, defense or settlement of investigation the Claim unless (i) specifically approved in writing by the Indemnitor or as otherwise provided in clauses (aii) through (c) belowthe interests of the Indemnitor and Indemnitee with respect to such Claim are sufficiently adverse to prohibit the representation by the same counsel of both Parties under Applicable Law, ethical rules or equitable principles. For clarity, if the Indemnitee shall have has the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in control the defense of a Claim pursuant to this Section 10.3, the ProceedingIndemnitee shall be entitled to control such Claim, but Indemnitee does notwithout limiting the Indemnitor’s responsibility for Losses under Section 10.1 or Section 10.2, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingas applicable.
Appears in 1 contract
Defense. With respect to any ProceedingUpon receipt of notice under Subsection (a) from the Indemnitee, the Company Indemnifying Party will be ------- entitled have the duty to participate in the Proceeding either compromise or defend, at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with and by counsel (reasonably satisfactory to Indemnitee), such Action. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Action pursuant to this Article 8 and of its intention to either compromise or defend such Action. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Company Indemnitee will have the right to employ separate counsel and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such counsel) if:
(i) the use of the counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee reasonably concludes that there may be legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party will not be entitled have the right to assume the defense of any Proceeding such Action on the Indemnitee's behalf);
(aiii) brought by the Company, Indemnifying Party does not employ counsel satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action;
(iv) the Indemnifying Party denies or fails to timely admit its obligation to defend and indemnify the Action; or
(bv) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense reasonable opinion of counsel to the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the ProceedingIndemnitee, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company claim could result in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; becoming subject to injunctive relief or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.relief other than
Appears in 1 contract
Sources: Collaboration Agreement (Amylin Pharmaceuticals Inc)
Defense. With respect to (a) Promptly after the receipt by any Proceeding, the Company will be ------- person entitled to participate in indemnification under Section 5.1 and 5.2 of this Agreement of notice of (i) any claim or (ii) the Proceeding at its own expense andcommencement of any action or proceeding, except as otherwise provided belowsuch 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 extent "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the Company so desires, commencement of such action or proceeding and shall permit the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnifying Party to assume the defense of any Proceeding (a) brought by such claim or any proceeding or litigation resulting from such claim, unless the Company, action or (b) as to which Indemnitee has reasonably determined that proceeding seeks an injunction or other similar relief against the Aggrieved Party or there may be is a conflict of interest between Indemnitee it and the Company Indemnifying Party in the conduct of the defense of such action. Failure by the Proceeding and Indemnitee does Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in fact assume and conduct no event more than 15 days after written notice thereof shall have been given to the defenseIndemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
4.2.1 (b) If the Company Indemnifying Party assumes the defensedefense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, Indemnitee the obligations of the Indemnifying Party as to such claim shall furnish such information regarding Indemnitee or the Proceeding be limited to taking all steps necessary in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding claim or litigation resulting therefrom and shall fully cooperate 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 the Company such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of such claim or litigation provided that the ProceedingIndemnifying Party shall direct and control the 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 Company shall take all necessary steps in good faith defense of such claim or any litigation resulting therefrom, consent to defendentry of any judgment, settle or otherwise dispose except with the written consent of the ProceedingAggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
4.2.2 After notice from (c) If the Company to Indemnitee of its election to Indemnifying Party shall not assume the defense of any Proceedingsuch claim or litigation resulting therefrom, the Company will not be liable Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to Indemnitee under this Agreement the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise for any Expenses in excess of $10,000 subsequently otherwise, as incurred by Indemnitee the Aggrieved Party in connection with the defense against or settlement of such Proceeding other than reasonable costs claim or litigation. No settlement of investigation claim or as otherwise provided in clauses (a) through (c) belowlitigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Indemnitee If no settlement of the claim or litigation is made, the Indemnifying Party shall have promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to employ Indemnitee's own counsel such claim or in such Proceedinglitigation and of all expenses, but all Expenses related thereto in excess of $10,000 legal or otherwise, as incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the Proceeding, but Indemnitee does not, in fact, assume claim has been made and conduct delivered within the defense; or (c) one-year period following the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.Closing Date unless otherwise provided herein. Stock Purchase Agreement - Page 11 ------------------------
Appears in 1 contract
Defense. With respect If the facts relating to a Loss arise out a Third Party Claim, or if there is any Proceedingclaim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnity Obligor shall, except as otherwise provided below, by giving written notice to the extent Indemnified Party within 15 days following its receipt of the Company so desiresnotice of such claim, the Company may assume the defense thereof with or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to Indemnitee. Howeverthe Indemnified Party, at its cost and expense; PROVIDED, HOWEVER, that during the Company interim the Indemnified Party shall not be entitled use its best efforts to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all action (not including settlement) reasonably necessary steps in good faith to defend, settle protect against further damage or otherwise dispose of loss with respect to the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) belowLoss. Indemnitee The Indemnified Party shall have the right to employ Indemnitee's own counsel separate from counsel employed by the Indemnity Obligor in any such Proceedingaction and to participate therein, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel shall be at Indemniteethe Indemnified Party's own expense, unless: unless (a) the employment of counsel by Indemnitee thereof has been specifically authorized by the Company; Indemnity Obligor, (b) Indemnitee such Indemnified Party has been advised by counsel reasonably determined satisfactory to the Indemnity Obligor that there may be a conflict of interest between Indemnitee one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and the Company in the defense reasonable judgment of the Proceedingsuch counsel it is advisable for such Indemnified Party to employ separate counsel, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company Indemnity Obligor has not, in fact, assumed and is not conducting failed to assume the defense of such Proceedingaction 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 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 shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the 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.
Appears in 1 contract
Sources: Consulting Agreement (Ultrexx Corp)
Defense. With The Indemnified Party shall permit the Indemnitor to assume the defense of such Claim and any litigation resulting therefrom (and to prosecute by way of counterclaim or third party complaint any claim against such third party arising out of or relating to the Claim in question) upon receipt by the Indemnified Party of the Indemnitor's written acknowledgment of its obligation to indemnify the Indemnified Party with respect to any Proceedingthe Claim and agreement to assume the defense of all claims or counts of such Claim. After giving such written agreement, the Company will 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 be entitled to conduct its own defense at the cost 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 the Proceeding such defense at its own expense and, except as otherwise provided below, expense. Counsel selected by the Indemnitor or by the Indemnified Party to defend any Claim shall be subject to the extent reasonable approval of the Company so desires, other party. If the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnitor fails to assume the defense of any Proceeding such Claim as provided above within a reasonable time (a) brought by the Companywhich shall be such period of time as will not, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense reasonable judgment of the Proceeding and Indemnitee does Indemnified Party, result in fact assume and conduct prejudice to the defense.
4.2.1 If rights of the Company assumes the defenseIndemnified Party) after due notice has been given of a Claim, Indemnitee shall furnish then until such information regarding Indemnitee or the Proceeding in question, time as the Company may reasonably request and as may be required in connection with the defense or settlement of Indemnitor shall make such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceedingassumption, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Indemnified Party shall have the right to employ Indemnitee's prosecute and conduct its own defense by counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption 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 Indemnitee's expensethe cost and expense of the Indemnitor if the Indemnitor subsequently assumes such defense as provided above, unlessor 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: (ai) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be if a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defenseClaim seeks equitable relief; or (cii) if the Company has notsubject matter of a Claim relates to the ongoing business of any of the Purchaser Indemnified Parties, which Claim, if decided against any of the Purchaser Indemnified Parties, would have a Material Adverse Effect on the ongoing business or reputation of any of the Purchaser Indemnified Parties, then, in facteach such case, assumed the Purchaser Indemnified Parties alone shall be entitled to, acting as a reasonable person under similar circumstances, contest, defend and is settle such Claim in the first instance and, if the Purchaser Indemnified Parties do not conducting contest, defend or settle such Claim, the defense of Sellers' Representative shall then have the right to contest and defend (but not settle) such ProceedingClaim.
Appears in 1 contract
Defense. With respect If any Proceeding referred to any in Section 10.9.1 is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the Company will indemnifying party will, unless the claim is a Tax Claim, be ------- entitled to participate in the such Proceeding at its own expense and, except as otherwise provided below, to the extent that it wishes (unless (i) the Company so desiresindemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the Company may assume indemnifying party fails to provide reasonable assurance to the defense thereof indemnified party of its financial capacity to defend such Proceeding and provide indemnification with counsel reasonably satisfactory respect to Indemnitee. Howeversuch Proceeding), the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with counsel satisfactory to the Company in every other respect. Except as provided in Section 4.3 belowindemnified party and, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After after notice from the Company indemnifying party to Indemnitee the indemnified party of its election to assume the defense of any such Proceeding, the Company indemnifying party will not not, as long as it diligently conducts such defense, be liable to Indemnitee the indemnified party under this Agreement or otherwise Section 10 for any Expenses fees of other counsel or any other expenses with respect to the defense of such Proceeding, in excess of $10,000 each case subsequently incurred by Indemnitee the indemnified party in connection with the defense of such Proceeding Proceeding, other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) belowinvestigation. Indemnitee shall have If the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in indemnifying party assumes the defense of the a Proceeding, but Indemnitee (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 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 of the commencement of any Proceeding and the indemnifying party does not, in factwithin ten (10) days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Management Network Group Inc)
Defense. With respect to If any Proceedingsuch action is brought against an indemnified Party, the Company indemnifying Party will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, and to the extent the Company so desires, the Company may assume the defense thereof to the extent that it may wish, with counsel reasonably satisfactory to Indemnitee. Howeversuch indemnified Party, and after notice from the indemnifying Party to such indemnified Party of the indemnifying Party’s election to assume the defense thereof, the Company indemnifying Party shall not be entitled liable to such indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof unless the indemnifying Party has failed to assume the defense of such claim. Notwithstanding any Proceeding of the foregoing to the contrary, the indemnified Party will be entitled to select its own counsel and assume the defense of any action brought against it if the indemnifying Party fails to assume such defense, the reasonable expenses of such defense to be paid by the 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 in the prosecution or defense of such indemnified claim at no unreasonable expense to the indemnified Party. No indemnifying Party shall consent to entry of any judgment or enter into any settlement with respect to a claim either (a) brought by without the Companyconsent of the 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 the claimant or plaintiff to which Indemnitee has reasonably determined that there may be such indemnified Party of a conflict release from all liability with respect to such claim. No indemnified Party shall consent to entry of interest between Indemnitee and the Company in any judgment or enter into any settlement of any such action, the defense of which has been assumed by an indemnifying Party, without the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement consent of such Proceeding and indemnifying Party, which consent shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingunreasonably withheld.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Three Rivers Operating Co Inc.)
Defense. With respect to any ProceedingProceedin▇, the Company ▇▇▇▇ath RentCorp will be ------- entitled to participate in the Proceeding at its own expense and, except ▇▇▇ ▇▇n expense. Except as otherwise provided below, to the extent the Company McGrath RentCorp so desires, the Company may it may, upon delivery of written notice ▇▇ ▇▇▇▇xx, assume the defense thereof of any Proceeding with counsel reasonably satisfactory to IndemniteeXxxxxx. However, the Company McGrath RentCorp shall not be entitled to assume the defense of any Proceeding P▇▇▇▇▇▇▇ng (ai) brought by the Companyor on behalf of McGrath RentCorp, or (bii) as to which Indemnitee Xxxxxx has reasonably determined that there determine▇ ▇▇▇▇▇ may be a conflict of interest between Indemnitee Xxxxxx and the Company McGrath RentCorp in the defense of the Proceeding and Indemnitee Xxxxxx does in fact assume ▇▇▇▇ ▇▇sume and conduct the defense.
4.2.1 5.2.1 If the Company McGrath RentCorp assumes the defense, Indemnitee Xxxxxx shall furnish such information infor▇▇▇▇▇▇ as he may possess regarding Indemnitee Xxxxxx or the Proceeding in question, as the Company question that McGrath RentCorp may reasonably request and as may be required in connection con▇▇▇▇▇▇▇ with the defense or settlement of such Proceeding and shall fully cooperate with the Company McGrath RentCorp in every other respect. Except as provided in Section 4.3 belowSectio▇ ▇.▇ ▇elow, if the Company McGrath RentCorp assumes the defense of the Proceeding, the Company shall McGrath RentC▇▇▇ ▇▇▇ll take all necessary steps in good faith to defenddefe▇▇, settle ▇▇▇tle or otherwise dispose of the Proceeding.
4.2.2 5.2.2 After written notice from the Company McGrath RentCorp to Indemnitee Xxxxxx of its election to assume the defense of any Proceedinga▇▇ ▇▇▇▇eeding, the Company McGrath RentCorp will not be liable to Indemnitee Xxxxxx under this Agreement or otherwise ▇▇▇▇▇▇ise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee Xxxxxx in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (ai) through (civ) below. Indemnitee Xxxxxx shall have the right to employ IndemniteeXxxxxx's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after written notice from the Company McGrath RentCorp of its assumption of the defense shall be at Indemnitee's expenseXxxxxx'▇ ▇▇▇▇▇se, unless: (ai) the employment of counsel by Indemnitee Xxxxxx has been authorized by the CompanyMcGrath RentCorp; (bii) Indemnitee Xxxxxx has reasonably determined that there may be a conflict ▇ ▇▇▇▇▇ict of interest between Indemnitee Xxxxxx and the Company McGrath RentCorp in the defense of the Proceeding; (iii) after a Chan▇▇ ▇▇ ▇ontrol, but Indemnitee does the employment of counsel by Xxxxxx has been approved by Independent Counsel; or (iv) McGrath RentCorp shall not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting defense o▇ ▇▇▇▇ Proceeding within a reasonable time after giving written notice of its election to assume the defense of such Proceeding.
5.2.3 Any Expenses incurred by McGrath RentCorp in defense of the Proceeding under this Section 5.2 (▇▇▇▇▇▇ in a situation described in clause (i), (ii) or (iv) of Section 5.2.2) shall be considered Expenses advanced by McGrath RentCorp to Xxxxxx under Section 3 above.
Appears in 1 contract
Defense. With respect to any Proceeding, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company The Indemnifying Party may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume undertake and control the defense of the Third Party Claim, by representatives reasonably acceptable to the Indemnified Party, if (i) the Indemnified Party, in the case it is any Proceeding of the Buyer Indemnified Parties, determines that the Losses alleged to be subject to indemnification under this Article 8 would not be recoverable, in whole or predominately, under the RWI Policy and (aii) brought by the CompanyIndemnifying Party admits in written notice to the Indemnified Party that it has an indemnification obligation hereunder with respect to such Third Party Claim, or in which case such admission shall constitute the Indemnifying Party’s undertaking to pay directly all Losses incurred in connection with the Third Party Claim (b) as giving effect to which Indemnitee has reasonably determined that there may be a conflict the limitations set forth in this Article 8). If the Indemnifying Party undertakes the defense of interest between Indemnitee and the Company Third Party Claim, then the Indemnified Party shall have the right to participate in the defense of the Proceeding Third Party Claim at its own expense, provided that, in such event, the Indemnifying Party shall pay the fees and Indemnitee does expenses of such separate counsel (A) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim or (B) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. So long as the Indemnifying Party is defending the Third Party Claim actively and in fact assume good faith, the Indemnified Party shall not compromise or settle, or consent to the entry of a judgment with respect to, the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Each Party shall cooperate, and conduct cause its Subsidiaries to cooperate, in the defense.
4.2.1 If the Company assumes the defense, Indemnitee defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such information regarding Indemnitee records, information, and testimony, and attend such conferences, discovery proceedings, hearings, trials, or the Proceeding in questionappeals, as the Company may reasonably request and as may be required reasonably requested in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceedingdefense.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any ProceedingProceeding as to which Indemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, the Company Covidien plc will be ------- entitled to participate in the Proceeding at its own expense and, and except as otherwise provided below, to the extent the Company Covidien plc so desireswishes, the Company it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company Covidien plc to Indemnitee of its election to assume the defense of any Proceeding, the Company will Covidien plc shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own legal counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company Covidien plc of its assumption of the defense shall be at Indemnitee's expense, ’s expense unless: (ai) the employment of legal counsel by Indemnitee has been authorized by the Company; Covidien plc, (bii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Covidien plc in the defense of the Proceeding, but (iii) after a Change in Control, the employment of counsel by Indemnitee does nothas been approved by the Independent Counsel, in fact, assume and conduct the defense; or (civ) the Company has not, Covidien plc shall not in fact, assumed and is not conducting fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Covidien plc. Covidien plc shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Covidien Ltd. or Covidien plc, (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Covidien plc may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).
Appears in 1 contract
Defense. With respect to any ProceedingUpon receipt of notice under Subsection (a) from the Indemnitee, the Company will be ------- entitled Indemnifying Party shall have the duty to participate in the Proceeding either compromise or defend, at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with and by counsel (reasonably satisfactory to Indemnitee) such Action. The Indemnifying Party shall promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it wishes to assume control of the Action pursuant to this Section 12 and of its intention to either compromise or defend such Action. The assumption of the defense of an Action by the Indemnifying Party shall not be construed as an acknowledgement that the Indemnifying Party is liable to indemnify the Indemnitee in respect of the Action, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party's claim for indemnification. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable costs of investigation and cooperation. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own separate counsel in and to control the defense of an Action (and the Indemnifying Party shall bear the reasonable fees, costs, and expenses of such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from counsel) if:
(i) the Company of its assumption use of the defense shall be at Indemnitee's expense, unless: counsel chosen by the Indemnifying Party would present such counsel with a conflict of interest;
(aii) the employment of counsel by actual or potential defendants in, or targets of, such Action include both the Indemnifying Party and the Indemnitee, and the Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined concludes that there may be a conflict of interest between Indemnitee and legal defenses available to it that are different from or additional to those available to the Company Indemnifying Party (in which case the defense of Indemnifying Party shall not have the Proceeding, but Indemnitee does not, in fact, right to assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such ProceedingAction on the Indemnitee's behalf);
(iii) the Indemnifying Party does not employ counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after the Indemnitee's notice of such Action; or
(iv) in the reasonable opinion of counsel to the Indemnitee, the claim could result in the Indemnitee becoming subject to injunctive relief or relief other than the payment of Losses that could have a materially adverse effect on the ongoing business of the Indemnitee; provided, however, that in no event shall the Indemnifying Party be obligated to bear the fees, costs and expenses of more than one (1) separate counsel for all of the other Party's Indemnitees in such Action.
Appears in 1 contract
Sources: License and Collaboration Agreement (Atherogenics Inc)
Defense. With Except as otherwise provided herein, in the case of any claim asserted by a Person that is not a party to this Agreement (a "Third Party Claim"), an Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If an Indemnifying Party elects to compromise or defend such Third Party Claim, it shall promptly notify the Indemnified Party and any other Indemnifying Parties of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the applicable Indemnifying Party or Indemnifying Parties, in the compromise of, or defense against, such Third Party Claim. For so long as no Indemnifying Party elects to compromise or defend against the Third Party Claim, fails to notify the Indemnified Party of its election to do so, or otherwise abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without prejudice of any of its rights as against any applicable Indemnifying Party), compromise or defend such Third Party Claim (until such defense is assumed by an 59 65 applicable Indemnifying Party) and (ii) the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the applicable Indemnifying Party or Indemnifying Parties pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in connection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (iii) there is a conflict of interest between an applicable Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (iv) there are specific defenses available to the Indemnified Party which are different from or additional to those available to an applicable Indemnifying Party and which could be materially adverse to such Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense of such Third Party Claim. In such an event, the applicable Indemnifying Party or Indemnifying Parties shall pay the reasonable fees and disbursements of their own counsel and one counsel to all the Indemnified Parties. Notwithstanding the foregoing, neither any Indemnifying Party nor the applicable Indemnified Party may settle or compromise any claim over the objection of any other Indemnifying Party that has any liability with respect to such claim or any Proceedingother Indemnified Party that is a party to such claim; provided, the Company will however, that consent to settlement or compromise shall not be ------- entitled to participate in the Proceeding at its own expense andunreasonably withheld by any Person. In any event, except as otherwise provided belowherein, any applicable Indemnified Party and any Indemnifying Party that has any liability with respect to the extent the Company so desiressuch claim may each participate, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverat its own expense, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of such Third Party Claim without, in the Proceeding and Indemnitee does in fact assume and conduct case of such Indemnified Party, any right to control such defense. If an Indemnifying Party chooses to defend any claim, the defense.
4.2.1 If the Company assumes the Indemnified Party shall make available to such Indemnifying Party any personnel or any books, records or other documents within its control that are reasonably necessary or appropriate for such defense, Indemnitee shall furnish such information regarding Indemnitee or subject to the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement receipt of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceedingappropriate confidentiality agreements.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Defense. With respect to any ProceedingProceeding as to which Indemnitee notifies the Company of the commencement thereof, the Company or any 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, and except as otherwise provided below, to the extent the Company or such Subsidiary so desireswishes, the Company it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company or such Subsidiary to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's ’s own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company or such Subsidiary of its assumption of the defense shall be at Indemnitee's expense, ’s expense unless: (ai) the employment of counsel by Indemnitee has been authorized by the Company; Company or such Subsidiary, (bii) 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, but Indemnitee does not(iii) after a Change in Control of the Company, in fact, assume and conduct the defense; or (civ) neither the Company has not, 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, assumed and is not conducting fact have employed counsel to assume the defense of such Proceeding, in each of which cases in clauses (i) through (iv) all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company or such Subsidiary has employed counsel to represent Indemnitee and other current and former directors, officers and employees of the Company or such Subsidiary in the defense of a Proceeding, and a majority of such persons, including Indemnitee, reasonably object to such counsel selected by the 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 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 company with which the Company or such Subsidiary obtains or maintains directors’ and officers’ liability insurance, if required by the terms of such insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(a), the Company shall and 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 separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. Neither the Company nor such Subsidiary shall be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or such Subsidiary, as to which Indemnitee shall have made the determination provided for in clause (ii) above or as to which the Indemnitee elects to assume the defense after the occurrence of either of the events described in clause (iii) above.
Appears in 1 contract
Sources: Indemnification Agreement (First Midwest Bancorp Inc)
Defense. With respect to any ProceedingExcept as otherwise provided herein, the Company will Indemnifying Party may elect to compromise or defend, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel (which counsel shall be ------- entitled reasonably satisfactory to participate the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to 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 Proceeding at compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its own expense andelection to do so as herein provided, or otherwise abandons the defense of such Third Party Claim, (i) the 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 Third Party Claim in which the Indemnified Party shall reasonably conclude, based upon the written advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and which could be materially adverse to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party shall indemnify the Indemnified Party for the fees and disbursements of counsel to each of the Indemnifying Party and the Indemnified Party. Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle or compromise any claim, (unless the sole relief payable to a third party in respect of such Third Party Claim is monetary damages that are paid in full by the party settling or compromising such claim) over the objection of the other; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, except as otherwise provided belowherein, the Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the Indemnified Party shall 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 Company so desiresreceipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this paragraph (b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Company may assume Indemnified Party shall, subject to the defense thereof with counsel reasonably satisfactory to Indemnitee. Howeverterms and conditions of this Article IX, have the Company shall not be entitled right to assume the defense of any Proceeding (a) brought by the Companysuch Third Party Claim; provided, or (b) as to which Indemnitee has reasonably determined however, that there may be a conflict of interest between Indemnitee and the Company in the defense of event that the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election Indemnifying Party subsequently elects to assume the defense of any Proceedingsuch Third Party Claim, then the Company will not be liable to Indemnitee under provisions set forth in this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; paragraph (b) Indemnitee has reasonably determined that there may shall be a conflict of interest between Indemnitee applicable and the Company in Indemnifying Party shall, subject to the defense terms and conditions of this Article IX, indemnify the Proceeding, but Indemnitee does not, in fact, assume Indemnified Party for any costs and conduct expenses incurred by the defense; or (c) Indemnified Party prior to the Company has not, in fact, assumed and is not conducting date the defense Indemnifying Party assumes control of such ProceedingThird Party Claim.
Appears in 1 contract
Defense. With respect If the facts pertaining to a Loss by a Buyer Indemnified Party or a Company Indemnified Party, as the case may be, arise out of the claim of any Proceedingthird party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company applicable Indemnifying Party may assume the defense or the prosecution thereof with by written notice to such Buyer Indemnified Party or Seller Indemnified Party, including the employment of counsel or accountants reasonably satisfactory to Indemniteesuch Buyer Indemnified Party or Seller Indemnified Party, at the Indemnifying Party's cost and expense. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, Such Buyer Indemnified Party or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Seller Indemnified Party shall have the right to employ Indemnitee's own counsel separate from counsel employed by such Indemnifying Party in any such Proceedingaction and to participate therein, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel employed by such Buyer Indemnified Party or Seller Indemnified Party shall be at Indemnitee's its expense. The Indemnifying Party shall not be liable for any settlement of any such claim effected without its prior written consent, unless: (a) which shall not be unreasonably withheld. The Indemnifying Party shall not agree to a settlement of any claim without the employment prior written consent of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there Buyer Indemnified Party or Seller Indemnified Party, as the case may be, which consent will not be a conflict of interest between Indemnitee and unreasonably withheld. Whether or not the Company 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 ProceedingBuyer Indemnified Party or Seller Indemnified Party, but Indemnitee does not, in fact, assume and conduct as the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingcase may be.
Appears in 1 contract
Defense. With respect If any civil or administrative action that might reasonably be expected to result in an Indemnifiable Claim (an "Action") is asserted or threatened by a third party against any ProceedingIndemnified Party, the Company will be ------- entitled Indemnifying Party may elect to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume control the defense thereof with experienced counsel reasonably satisfactory to Indemniteethe Indemnified Party. HoweverNotwithstanding the foregoing, if the Company Indemnifying Party, within fifteen (15) days after receipt of a notice of such Action, fails to give written notice to the Indemnified Party that the Indemnifying Party is undertaking the defense thereof or thereafter fails to timely assume such defense, then the Indemnified Party shall have the right to defend, compromise or settle the Action for the account of the Indemnifying Party. An assertion by the Indemnifying Party of a reservation of rights with respect to such Action shall not constitute a failure to give written notice that it shall undertake such defense. If the Indemnifying Party assumes control of the defense in an Action, it will take all steps necessary in the defense, prosecution, or settlement of such claim or 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 except with the written consent of the Indemnified Party; provided, however, that the consent of the Indemnified Party shall not be entitled 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 assume 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. The Indemnifying Party shall conduct the defense of any Proceeding (a) brought by the CompanyAction actively and diligently, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Indemnified Party will provide reasonable cooperation in the defense of the Proceeding and Indemnitee does in fact assume and conduct Action. In all cases, the defense.
4.2.1 If party that is not assigned the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with right to control the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company participate in the defense of the ProceedingAction at its own expense, but Indemnitee does notsubject to the reasonable direction of the other party. Each of the Indemnifying Party and the Indemnified Party shall give all reasonable assistance to the other party in connection therewith. In any case, in factthe Indemnified Party shall, assume 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 defense; Indemnified Party is or (c) the Company has not, in fact, assumed and is not conducting was required to give notice. The party having control of the defense of such Proceedingan Action shall notify the other party of every proposal, oral or written, for settlement, which it receives or makes.
Appears in 1 contract
Defense. With respect (a) If the facts pertaining to a Loss arise out of the claim of any Proceedingthird party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnity Obligor may, except as otherwise provided below, by giving written notice to the extent Indemnified Party within thirty (30) days following its receipt of the Company so desiresnotice of such claim, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled elect to assume the defense or the prosecution thereof, including the employment of any Proceeding 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 (anot including settlement) brought reasonably necessary to protect against further damage or loss with respect to the Loss; provided further that the reasonable costs and expenses incurred by the Company, or such Indemnified Party in protecting against further damage will be considered a Loss.
(b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee The Indemnified Party shall have the right to employ Indemnitee's own counsel participate in such Proceedingdefense and to employ counsel separate from counsel employed by the Indemnity Obligor in any such action and to participate therein, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel shall be not be considered a Loss and shall be at Indemnitee's expense, unless: the Indemnified Party’s own expense unless (aA) the employment of counsel by Indemnitee has been authorized selected by the Company; Indemnity Obligor shall be unwilling or unable to represent the Indemnified Party, or (bB) Indemnitee has reasonably determined that there may be a legal conflict of interest exists between Indemnitee the Indemnity Obligor and the Company Indemnified Party such 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 claims, in each of which cases the reasonable fees and expenses of separate counsel 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 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. 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 ProceedingIndemnified Party before entering into any settlement of a claim if, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense as a result of such Proceedingsettlement, 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 and to the 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 be subrogated to and shall stand in the place of the Indemnified Party to the extent of such payment as to any events or circumstances in respect of which the 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, and the reasonable fees and expenses incurred by the Indemnified Party in providing such cooperation shall also be a Loss for which indemnity is provided by the Indemnity Obligor.
Appears in 1 contract
Defense. With If the matter with respect to which a Party seeks indemnification (the "Indemnitee") involves a claim asserted against the Indemnitee by a third party, promptly after receipt by the Indemnitee of notice of the commencement of any Proceedingaction, it will notify the other Party (the "Indemnitor") in writing of the commencement thereof but the omission so to notify the Indemnitor will not relieve the Indemnitor from any liability which it may have to the Indemnitee unless the Indemnitor is prejudiced by such omission. In case any such action shall be brought against the Indemnitee and it shall notify the Indemnitor of the commencement thereof, the Company will Indemnitor shall be ------- entitled to participate in the Proceeding at its own expense in, and, except as otherwise provided below, to the extent the Company so desires, the Company that it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled wish to assume the defense of any Proceeding (a) brought by thereof, with counsel satisfactory to the CompanyIndemnitee, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After after notice from the Company Indemnitor to the Indemnitee of its election to assume the defense of any Proceedingthereof, the Company will Indemnitor shall not be liable to the Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to this sentence, (ii) the Indemnitor shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time, (iii) the Indemnitor and its counsel do not actively and vigorously pursue the defense of such Proceeding other than reasonable costs action, or (iv) the Indemnitor has authorized the employment of investigation or as otherwise provided in clauses (a) through (c) below. counsel for the Indemnitee at the expense of the Indemnitor; provided, however, that the Indemnitee shall have the right to employ Indemnitee's own counsel to represent it if, in such Proceedingits reasonable judgment, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall it is advisable for it to be at Indemnitee's expenserepresented by separate counsel because separate defenses are available, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be or because a conflict of interest exists between the Indemnitee and the Company Indemnitor in respect to such claim, and in such event the defense fees and expenses of such separate counsel shall be paid by the Indemnitor. In such circumstance, the Indemnitee shall designate the counsel. The Indemnitor will not be liable to the Indemnitee for any settlement of any action or claim without the consent of the Proceeding, but Indemnitor and the Indemnitor may not unreasonably withhold its consent to any settlement. The Indemnitor will not consent to entry of any judgment or enter into any settlement or compromise any claim which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnitee does not, in fact, assume and conduct the defense; of a full release from all liability with respect to such claim or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedinglitigation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Princeton Video Image Inc)
Defense. With respect If a claim by a third party is made against any party entitled to any Proceedingindemnification under this Agreement, such Indemnified Party shall promptly (i.e., within five (5) business days of the Indemnified Party having actual knowledge of such claim) 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, through counsel of its choosing (subject to the reasonable consent of the Indemnified Party) and at the expense of the indemnifying party, the Company will settlement or defense thereof; provided, however, that any such settlement shall be ------- entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, subject to the extent written consent of the Company so desiresIndemnified Party, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company which consent shall not be entitled unreasonably withheld, conditioned or delayed. If approval of the monetary terms of any such proposed settlement is not given, 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 within ten (10) business days after receipt of the Indemnified Party's notice of a claim of indemnity hereunder that the indemnifying party elects to assume undertake the defense of any Proceeding (a) brought by the Companythereof, or (b) as the indemnifying party ceases to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company contest such claim in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceedinggood faith, the Company Indemnified Party shall take all necessary steps in good faith have the right to defendcontest, settle or otherwise dispose compromise the claim at the expense of the Proceeding.
4.2.2 After notice from indemnifying party and subject to the Company to Indemnitee written consent of its election to assume the defense of any Proceedingindemnifying party, the Company will which shall not be liable to Indemnitee under this Agreement unreasonably withheld, conditioned or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in delayed. In connection with the defense of any claim, each party will make available to the party controlling such Proceeding defense, any books, records or other than reasonable costs documents within its control that are reasonably requested in the course of investigation or such defense. Nothing contained in this Section 9.3.2 shall be construed as otherwise provided in clauses (a) through (c) below. Indemnitee shall have a limitation on the right of any party to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingindemnification under this Agreement.
Appears in 1 contract
Defense. With respect If the facts relating to a Loss arise out a Third Party Claim, or if there is any Proceedingclaim against a third party available by virtue of the circumstances of the Loss, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnity Obligor shall, except as otherwise provided below, by giving written notice to the extent Indemnified Party within 15 days following its receipt of the Company so desiresnotice of such claim, the Company may assume the defense thereof with or the prosecution thereof, including the employment of counsel or accountants, reasonably satisfactory to Indemnitee. Howeverthe Indemnified Party, at its cost and expense; provided, however, that during the Company interim the Indemnified Party shall not be entitled use its best efforts to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all action (not including settlement) reasonably necessary steps in good faith to defend, settle protect against further damage or otherwise dispose of loss with respect to the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) belowLoss. Indemnitee The Indemnified Party shall have the right to employ Indemnitee's own counsel separate from counsel employed by the Indemnity Obligor in any such Proceedingaction and to participate therein, but all Expenses related thereto in excess the fees and expenses of $10,000 incurred after notice from the Company of its assumption of the defense such counsel shall be at Indemniteethe Indemnified Party's own expense, unless: unless (a) the employment of counsel by Indemnitee thereof has been specifically authorized by the Company; Indemnity Obligor, (b) Indemnitee such Indemnified Party has been advised by counsel reasonably determined satisfactory to the Indemnity Obligor that there may be a conflict one or more legal defenses available to it which are different from or additional to those available to the Indemnity Obligor and counsel to each of interest between Indemnitee the Indemnified Party and the Company in Indemnity Obligor shall have advised such parties that representation of both parties by the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; same counsel would be inappropriate due to actual or potential differing interests between them or (c) the Company Indemnity Obligor has not, in fact, assumed and is not conducting failed to assume the defense of such Proceedingaction. 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 be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstances in respect of which the 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.
Appears in 1 contract
Defense. With respect The party to any Proceedingprovide indemnification (the “Indemnifying Party”) shall (subject to the limitations set forth in subsection 7.2(c) below and subject to the following sentence), the Company will be ------- entitled to participate in the Proceeding at its own expense andexpense, except as otherwise provided below, by written notice to the extent Indemnified Party, assume the Company so desiresentire control of, subject to the right of the Indemnified Party to participate (at its expense and with counsel of its choice) in, the Company may assume defense of the Third Party Claim as to which such Notice of Claim has been given. All expenses, fees, and costs associated with the defense thereof with counsel reasonably satisfactory to Indemniteeof 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. However, If the Company shall not be entitled Indemnifying Party is permitted to assume the defense of any Proceeding a Third Party Claim:
(ai) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee Indemnifying Party shall diligently and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose defend such Third Party Claim and shall keep Indemnifying Party reasonably informed of the Proceeding.
4.2.2 After notice from status of such defense; provided, however, that in the Company to Indemnitee of its election to assume the defense case of any Proceedingsettlement providing for remedies other than monetary damages for which indemnification is provided, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Indemnifying Party shall have the right to employ Indemnitee's own approve the settlement, which approval will not be unreasonably withheld, conditioned, or delayed;
(ii) Indemnified Party shall cooperate fully in all respects with the Indemnifying Party in any such defense, compromise or settlement thereof, including, without limitation, the selection of counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense (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 Indemnitee's expensesuch time after the Escrowed Cash is fully exhausted, unless: 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 (a) and subject to applicable securities laws), to sell or pledge such Escrowed Shares at any time during the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Escrow Period to assist in the defense of the Proceedingand/or to pay any Losses. The parties agree to take all steps necessary, but Indemnitee does notincluding execution of subsequent documentation, in fact, assume and conduct the defense; or (c) the Company has not, order to enable Representative to act in fact, assumed and is not conducting the defense of such Proceedingaccordance with this Article VII.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Defense. With respect to (a) Promptly after the receipt by any Proceeding, the Company will be ------- person entitled to participate in indemnification under Section 9.2 or 9.3 herein of notice of (i) any claim or (ii) the Proceeding at its own expense andcommencement of any action or proceeding, except as otherwise provided belowsuch party (the "Aggrieved Party") will, if the claim with respect thereto is made against any party obligated to provide indemnification pursuant to Section 9.2 or 9.3 herein (the extent "Indemnifying Party"), give such Indemnifying Party written notice of such claim or the Company so desires, commencement of such action or proceeding and shall permit the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnifying Party to assume the defense of any Proceeding (a) brought by such claim or any proceeding or litigation resulting from such claim, unless the Company, action or (b) as to which Indemnitee has reasonably determined that proceeding seeks an injunction or other similar relief against the Aggrieved Party or there may be is a conflict of interest between Indemnitee it and the Company Indemnifying Party in the conduct of the defense of such action. Failure by the Proceeding and Indemnitee does Indemnifying Party to notify the Aggrieved Party of its election to defend any such proceeding or action within a reasonable time, but in fact assume and conduct no event more than 15 days after written notice thereof shall have been given to the defenseIndemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to defend such action.
4.2.1 (b) If the Company Indemnifying Party assumes the defensedefense of any such claim or litigation resulting therefrom with counsel reasonably acceptable to the Aggrieved Party, Indemnitee the obligations of the Indemnifying Party as to such claim shall furnish such information regarding Indemnitee or the Proceeding be limited to taking all steps necessary in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding claim or litigation resulting therefrom and shall fully cooperate 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 the Company such claim or litigation resulting therefrom. The Aggrieved Party may participate, at its expense, in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of such claim or litigation provided that the ProceedingIndemnifying Party shall direct and control the 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 Company shall take all necessary steps in good faith defense of such claim or any litigation resulting therefrom, consent to defendentry of any judgment, settle or otherwise dispose except with the written consent of the ProceedingAggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party.
4.2.2 After notice from (c) If the Company to Indemnitee of its election to Indemnifying Party shall not assume the defense of any Proceedingsuch claim or litigation resulting therefrom, the Company will not be liable Aggrieved Party may defend against such claim or litigation in such manner as it may deem appropriate and reasonably satisfactory to Indemnitee under this Agreement the Aggrieved Party. The Indemnifying Party shall promptly reimburse the Aggrieved Party for the amount of all expenses, legal or otherwise for any Expenses in excess of $10,000 subsequently otherwise, as incurred by Indemnitee the Aggrieved Party in connection with the defense against or settlement of such Proceeding other than reasonable costs claim or litigation. No settlement of investigation claim or as otherwise provided in clauses (a) through (c) belowlitigation shall be made without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. Indemnitee If no settlement of the claim or litigation is made, the Indemnifying Party shall have promptly reimburse the right Aggrieved Party for the amount of any judgment rendered with respect to employ Indemnitee's own counsel such claim or in such Proceedinglitigation and of all expenses, but all Expenses related thereto in excess of $10,000 legal or otherwise, as incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Aggrieved Party in the defense against such claim or litigation.
(d) The rights to indemnification hereunder shall apply to claims made by either party against the other whereby written notice of the Proceeding, but Indemnitee does not, in fact, assume claim has been made and conduct delivered within the defense; or (c) period of the Company has not, in fact, assumed and is not conducting the defense applicable statute of such Proceedinglimitations.
Appears in 1 contract
Defense. With respect to any ProceedingUpon receipt of notice under Section 11.3.1 (Notice) from the Indemnitee, the Company Indemnifying Party will be ------- entitled have the duty to participate in the Proceeding either compromise or defend, at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with and by counsel (reasonably satisfactory to Indemnitee), such Claim. HoweverThe Indemnifying - 41 - [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Party will promptly (and in any event not more than [*] after receipt of the Indemnitee’s original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 11 (Indemnification; Insurance) and of its intention either to compromise or defend such Claim. Once the Indemnifying Party gives such notice to the Indemnitee, (a) the Indemnifying Party will have the right to control the defense and settlement of such Claim, subject to this Section 11.3 (Indemnification Procedures) and (b) the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee’s reasonable expenses of investigation and cooperation. Any Indemnitee will be entitled to participate in, but not control, the Company shall not defense of any Claim and to retain counsel of its choice for such purpose; provided that such retention will be entitled at the Indemnitee’s own cost and expense unless (i) the Indemnifying Party has failed to assume the defense of any Proceeding and retain counsel in accordance with this Section 11.3.2 (aDefense) brought by (in which case the Companyindemnified Party will control the defense at the Indemnifying Party’s cost and expense), or (bii) as to which Indemnitee has reasonably determined that there may be a conflict the interests of interest between the Indemnitee and the Company in Indemnifying Party with respect to such Claim are sufficiently adverse to prohibit the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized representation by the Company; (b) Indemnitee has reasonably determined that there may be a conflict same counsel of interest between Indemnitee and the Company in the defense of the Proceedingboth Parties under any legal requirement, but Indemnitee does notethical rules, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingequitable principles.
Appears in 1 contract
Defense. With respect If the facts pertaining to any Proceedingan 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 Company will Indemnifying Party has the right, to be ------- entitled exercised by delivering written notice to participate in the Proceeding 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 and, except as otherwise provided below, to the extent the Company so desires, the Company may assume expense. The assumption of the defense thereof with counsel reasonably satisfactory to Indemnitee. However, of an indemnification claim by the Company Indemnifying Party shall not be entitled construed as an acknowledgement that the Indemnifying Party is liable to assume indemnify the Indemnified Party in respect of such indemnification claim, nor shall it constitute a waiver by the 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 Proceeding (a) brought by third party claim or litigation, the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict obligations of interest between Indemnitee and the Company Indemnifying Party under this Agreement shall include taking all steps necessary in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defenseinvestigation, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding claim or litigation (including the retention of legal counsel) and shall fully cooperate with holding the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take Indemnified Party harmless from and against any and all necessary steps in good faith to defend, settle losses caused by or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense arising out of any Proceeding, settlement approved by the Company will not be liable to Indemnitee under this Agreement Indemnified Party or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee judgment in connection with such claim or litigation. The Indemnifying Party shall not, in the defense of such Proceeding other than reasonable costs claim or litigation, consent to entry of investigation any judgment (except with the written consent of the Indemnified Party), or as otherwise provided in clauses enter into any settlement (except with the written consent of the Indemnified Party): (a) through (c) below. Indemnitee shall have that does not include as an unconditional term thereof the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized giving by the Companyclaimant or the plaintiff to the Indemnified Party a complete release from, all liability in respect of such claim or litigation; or (b) Indemnitee has reasonably determined that there may 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 shall permit the Indemnified Party to participate in such defense or settlement through counsel chosen by the Indemnified Party, with the fees and expenses of such counsel borne by the Indemnified Party. Whether or not the Indemnifying Party chooses to so defend or prosecute any such indemnification claim, all the parties hereto shall cooperate in good faith and in a conflict of interest between Indemnitee and the Company reasonable manner in the defense of the Proceedingor prosecution thereof and shall furnish such records, but Indemnitee does notmaterials, information, witnesses and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably requested in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingconnection therewith.
Appears in 1 contract
Defense. With respect to any ProceedingProceeding as to which Indemnitee notifies Covidien plc and Covidien Ltd. of the commencement thereof, the Company Covidien Ltd. will be ------- entitled to participate in the Proceeding at its own expense and, and except as otherwise provided below, to the extent the Company Covidien Ltd. so desireswishes, the Company it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company Covidien Ltd. to Indemnitee of its election to assume the defense of any Proceeding, the Company will Covidien Ltd. shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own legal counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company Covidien Ltd. of its assumption of the defense shall be at Indemnitee's expense, ’s expense unless: (ai) the employment of legal counsel by Indemnitee has been authorized by the Company; Covidien Ltd., (bii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company Covidien Ltd. in the defense of the Proceeding, but (iii) after a Change in Control, the employment of counsel by Indemnitee does nothas been approved by the Independent Counsel, in fact, assume and conduct the defense; or (civ) the Company has not, Covidien Ltd. shall not in fact, assumed and is not conducting fact have employed counsel to assume the defense of such Proceeding, in each of which cases all Expenses of the Proceeding shall be borne by Covidien Ltd. Covidien Ltd. shall not be entitled to assume the defense of any Proceeding (x) brought by or on behalf of Covidien plc or Covidien Ltd., (y) as to which Indemnitee shall have made the determination provided for in (ii) above or (z) after a Change in Control (it being specified, for the avoidance of doubt, that Covidien Ltd. may assume defense of any such proceeding described in this sentence with Indemnitee’s consent, provided that any such consent shall not affect the rights of Indemnitee under the foregoing provisions of this Section 6(b)).
Appears in 1 contract
Defense. With respect to any Proceeding, So long as the Company will be ------- entitled to participate conditions set forth in Section 8.4(a)(i) for the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnifying Party to assume the defense of any Proceeding (a) brought a Third Party Claim are and remain satisfied and the Indemnifying Party is vigorously defending such Third Party Claim, the Indemnifying Party may conduct the defense of the Third Party Claim to the extent permitted by this Agreement. The Indemnified Party may retain separate co-counsel at its sole cost and expense to represent it in connection with the Third Party Claim, and the Indemnifying Party shall cooperate, and cause the counsel selected by the CompanyIndemnifying Party to cooperate, with such co-counsel in connection with the response, defense and settlement of the Third Party Claim and any related suit or (b) as proceeding. If there exists or is reasonably likely to which Indemnitee has reasonably determined that there may be exist a conflict of interest between Indemnitee that would make it inappropriate, as advised in writing by outside counsel to the Indemnified Party, for the same counsel to represent both the Indemnified Party and the Company Indemnifying Party, then the Indemnified Party shall be entitled to retain one separate counsel in each jurisdiction for which the Indemnified Party reasonably determines counsel is required, which counsel shall be reasonably acceptable to the Indemnifying Party, at the expense of the Indemnifying Party. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), admit any Liability with respect to, settle, compromise or discharge the Third Party Claim if the admission, settlement, compromise or discharge (i) imposes anything, including the imposition of an injunction or other equitable relief upon the Indemnified Party, other than monetary damages fully indemnified and paid by the Indemnifying Party, (ii) does or would reasonably be expected to interfere with or adversely affect the business, operations or assets of the Indemnified Party or any of its Affiliates, (iii) does not include an unconditional provision whereby the plaintiff or claimant in the matter completely and unconditionally releases the Indemnified Party and its Affiliates from all Liability with respect to such matter, with prejudice, (iv) involves Taxes or (v) would result in the finding or admission of any violation of Law or Governmental Order by the Indemnified Party. With respect to the defense of any Third Party Claim, the party responsible for the defense of the Proceeding and Indemnitee does in fact assume and conduct Third Party Claim shall, to the defense.
4.2.1 If extent reasonably requested by the Company assumes other party, keep such other party informed as to the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement status of such Proceeding claim, including all settlement negotiations and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes offers and shall: (A) conduct the defense of the ProceedingThird Party Claim actively and vigorously and keep the other Party fully informed of material developments in the Third Party Claim at all stages thereof, (B) promptly submit to the Company shall take other Party copies of all necessary steps in good faith to defendpleadings, settle responsive pleadings, motions and other similar legal documents and papers received or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee filed in connection with therewith, (C) permit the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have Party and its counsel to confer on the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption conduct of the defense thereof, and (D) permit the other Party and its counsel an opportunity to review and comment on, which comments the Indemnifying Party shall reasonably consider, all legal papers to be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingsubmitted prior to their submission.
Appears in 1 contract
Sources: Asset Purchase Agreement (H&E Equipment Services, Inc.)
Defense. With respect If any Proceeding referred to any in Section 10.10.1 is brought against an indemnified party and it gives notice to the indemnifying party of the commencement of such Proceeding, the Company will indemnifying party will, unless the claim is a Tax Claim, be ------- entitled to participate in the such Proceeding at its own expense and, except as otherwise provided below, to the extent that it wishes (unless (i) the Company so desiresindemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate, or (ii) the Company may assume indemnifying party fails to provide reasonable assurance to the defense thereof indemnified party of its financial capacity to defend such Proceeding and provide indemnification with counsel reasonably satisfactory respect to Indemnitee. Howeversuch Proceeding), the Company shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with counsel satisfactory to the Company in every other respect. Except as provided in Section 4.3 belowindemnified party and, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After after notice from the Company indemnifying party to Indemnitee the indemnified party of its election to assume the defense of any such Proceeding, the Company indemnifying party will not not, as long as it diligently conducts such defense, be liable to Indemnitee the indemnified party under this Agreement or otherwise Section 10 for any Expenses fees of other counsel or any other expenses with respect to the defense of such Proceeding, in excess of $10,000 each case subsequently incurred by Indemnitee the indemnified party in connection with the defense of such Proceeding Proceeding, other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) belowinvestigation. Indemnitee shall have If the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in indemnifying party assumes the defense of the a Proceeding, but Indemnitee (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 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 of the commencement of any Proceeding and the indemnifying party does not, in factwithin ten days after the indemnified party’s notice is given, give notice to the indemnified party of its election to assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding, the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Management Network Group Inc)
Defense. With respect to any ProceedingIf a Third Party Claim is made against an Indemnitee, then the Company will Indemnitor shall be ------- entitled to participate in the Proceeding at its own expense defense of the Third Party Claim and, except as otherwise provided belowif the Indemnitor so chooses, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory of the Third Party Claim by providing written notice within ten (10) days of receipt of an Indemnification Notice to Indemnitee. Howeverthe Indemnitor, and such written notice to assume the Company defense of any claim shall include a certification that the Indemnitor will indemnify the Indemnitee from and against the Losses the Indemnitee may suffer resulting from, arising out of or caused by such claim; provided that the Indemnitor shall not be entitled to assume the defense of any Proceeding (aor continue the defense) brought (i) unless such claim involves only money damages and does not seek an injunction or other equitable relief, (ii) if such claim relates to or arises in connection with a criminal or quasi criminal proceeding, action, indictment, allegation or investigation, (iii) such Third Party Claim may give rise to Losses which are more than the remaining RWI Retention Amount at the time such claim is submitted by the CompanyIndemnitee, or (biv) as upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 vigorously prosecute or defend such Third Party Claim. If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election Indemnitor so elects to assume the defense of any Proceedinga Third Party Claim, then the Company will Indemnitor shall not be liable to the Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim unless (A) the Indemnitor shall have failed, or is not entitled, to assume the defense of such Proceeding other than reasonable costs Third Party Claim in accordance with this Section 7.7(b) or (B) the named parties to any such action (including any impleaded parties) include both such Indemnitee and the Indemnitor and such Indemnitee shall have been advised in writing by such counsel that there may be one (1) or more legal defenses available to the Indemnitee which are not available to the Indemnitor, or available to the Indemnitor the assertion of investigation or as otherwise provided in clauses (a) which would be adverse to the interests of the Indemnitee. If the Indemnitor assumes such defense, then the Indemnitor shall do so through (c) below. counsel reasonably acceptable to the Indemnitee at the expense of the Indemnitor and the Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company participate in the defense of the ProceedingThird Party Claim and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor, it being understood, however, that the Indemnitor shall control such defense, including any settlement or compromise of the Third Party Claim, but no such settlement or compromise may be effected without the Indemnitee’s consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, that the Indemnitee’s consent shall not be required if (1) such settlement is for monetary payment (all of which is indemnifiable by the Indemnitor) only and does not impose injunctive relief or other restrictions of any kind or nature on any Indemnitee does notand (2) expressly and unconditionally releases the Indemnitee from all Liabilities with respect to such Third Party Claim, without prejudice pursuant to an unconditional term thereof. If the Indemnitor chooses to defend any Third Party Claim, then the Parties shall cooperate in factthe defense of the Third Party Claim in all reasonable respects. Such cooperation shall include the retention and (upon the Indemnitor’s request) provision to the Indemnitor of records that are reasonably relevant to the Third Party Claim and making employees available on a mutually convenient basis as may be reasonably necessary to provide additional information and explanation of any material provided. If the Indemnitor, within ten (10) days of receipt of an Indemnification Notice relating to a Third Party Claim, chooses not to assume and conduct defense of the defense; Third Party Claim or (c) fails to notify the Company has not, in fact, assumed and Indemnitee that it is not conducting assuming the defense of such Proceedingclaim or, within a reasonable time after receipt of an Indemnification Notice relating to a Third Party Claim, fails to defend the Third Party Claim actively and in good faith, then the Indemnitee shall have the right to contest, settle or compromise the Third Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. The Indemnitee shall have the right to pay or settle any Third Party Claim; provided that except as set forth in the immediately preceding sentence, in such event it shall waive any right to indemnity therefor by the Indemnitor for such Third Party Claim or it shall have received the Indemnitor’s prior written consent (which will not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strata Critical Medical, Inc.)
Defense. With respect The Representative shall have the right, at its option (subject to any Proceeding, the Company will be ------- entitled to participate limitations set forth in the Proceeding Section 9.2(c) below) and at its own expense andexpense, except as otherwise provided belowby 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 extent entire control of, subject to the Company so desiresright of Parent to participate (at its expense and with counsel of its choice) in, the Company may assume defense, compromise or settlement of the defense thereof with 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 satisfactory acceptable to IndemniteeParent to be the lead counsel in connection with such defense. However, If the Company shall not be entitled Representative is permitted and elects to assume the defense of any Proceeding a Third Party Claim: (ai) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee Representative shall diligently and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose defend such Third Party Claim and shall keep Parent reasonably informed of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense status of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee defense; provided, however, that Parent shall have the right to employ Indemnitee's own counsel approve any settlement, which approval will not be unreasonably withheld, delayed or conditioned; and (ii) Parent and Merger Sub shall cooperate fully in all respects with the Representative 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. Notwithstanding the foregoing and anything to the contrary herein, in the event that the 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 indemnification be provided to the Parent Indemnitees in respect of such matter in an amount greater than the monetary amount contained in such Proceedingsettlement or compromise of, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of its assumption of the defense shall be at Indemnitee's expenseor offer to settle or compromise, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingany third-party claim.
Appears in 1 contract
Defense. With (i) Within thirty (30) days after delivery of an Indemnification Notice with respect to any Proceedinga Third Party Claim, the Company will be ------- entitled to participate in the Proceeding at its own expense andIndemnifying Party may, except as otherwise provided below, upon written notice thereof to the extent the Company so desiresIndemnified Party, the Company may assume control of the defense thereof of such Third Party Claim with counsel reasonably satisfactory to Indemniteethe Indemnified Party; provided that (A) the Indemnifying Party may only assume control of such defense if (1) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other Liabilities that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Article IX and (2) the ad damnum in such Third Party Claim, taken together with the estimated costs of defense thereof and the Claimed Amount with respect to any unresolved claims for indemnification then pending, is less than or equal to the amount of Losses for which the Indemnifying Party is potentially liable under this Article IX in connection with such Third Party Claim, and (B) the Indemnifying Party may not assume control of the defense of any Third Party Claim (I) by a Governmental Entity involving criminal Liability or (II) in which equitable relief (other than incidental equitable relief in any pleadings seeking such remedies as may be deemed appropriate by the court) is sought against the Indemnified Party or any of its Affiliates. HoweverThe Indemnified Party is hereby authorized (but not obligated) prior to and during the thirty (30) day period referred to in the preceding sentence to file any motion, answer or other pleading and to take any other action which the Company Indemnified Party shall not be entitled deem necessary or appropriate to protect its interests.
(ii) If the Indemnifying Party so elects to assume the defense of any Proceeding (a) brought a Third Party Claim as permitted under Section 9.4(b)(i), then the Indemnifying Party shall not be liable to the Indemnified Party for the reasonable fees and expenses of counsel subsequently incurred by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required Indemnified Party in connection with the defense thereof unless the Indemnified Party reasonably concludes (upon the advice of outside counsel) that the Indemnifying Party and the Indemnified Party have conflicting interests or settlement of different defenses available with respect to such Proceeding and shall fully cooperate with Third Party Claim, in each case such that it is in appropriate for a single outside counsel to represent both parties. Subject to Section 9.4(b)(iii), the Company Non-controlling Party may participate in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of any Third Party Claim at its own expense (except to the Proceedingextent otherwise contemplated by the preceding sentence), it being understood, however, that the Company Controlling Party shall take control such defense in all necessary steps respects. The Controlling Party shall keep the Non-controlling Party advised of the status of such Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-controlling Party with respect thereto. The Controlling Party and the Non-controlling Party shall reasonably cooperate in the defense, prosecution and/or settlement of any Third Party Claim, which cooperation shall include the retention and (upon the Controlling Party’s request) the provision to defendthe Controlling Party of records that are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not consent to a settlement of, settle or otherwise dispose the entry of any judgment arising from, any Third Party Claim unless (A) such settlement or judgment (i) is solely for money damages and the Indemnifying Party agrees to pay all such money damages, (2) includes a complete and unconditional release of the Proceeding.
4.2.2 After notice Indemnified Party and its Affiliates from further Liability, (3) involves no admission of wrongdoing by the Company to Indemnitee Indemnified Party or any of its election Affiliates and (4) excludes any injunctive or non-monetary relief applicable to the Indemnified Party or any of its Affiliates or (B) the Indemnified Party consents thereto. If the Indemnifying Party is not permitted to under the terms of this Agreement, chooses not to, or does not, assume the defense of any Proceedinga Third Party Claim or fails to defend such Third Party Claim actively and in good faith, then the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Indemnified Party shall have the right to employ Indemnitee's own counsel in defend, compromise or settle such Proceeding, but all Expenses related thereto in excess Third Party Claim or consent to the entry of $10,000 incurred after notice from judgment with respect to such Third Party Claim at the Company of its assumption expense of the defense Indemnifying Party; provided, however, the Indemnified Party shall be at Indemnitee's expense, unless: (a) not compromise or settle such Third Party Claim or consent to the employment entry of counsel by Indemnitee has been authorized by judgment with respect to such Third Party Claim without the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense prior written consent of the ProceedingIndemnifying Party, but Indemnitee does notwhich consent shall not be unreasonably withheld, in fact, assume and conduct the defense; conditioned or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceedingdelayed.
Appears in 1 contract
Sources: Master Sale and Purchase Agreement (LTX-Credence Corp)
Defense. With In the event any action, suit or proceeding (a "LEGAL ACTION") is brought against an indemnified party, with respect to any Proceedingwhich the indemnifying party may have liability under an indemnity agreement contained herein, the Company will Legal Action shall, upon the written agreement of the indemnifying party that it is obligated to indemnify under such indemnity agreement, be ------- entitled defended by the indemnifying party and such defense shall include all proceedings on appeal or for review which counsel for the defendant shall deem appropriate. The indemnified party shall have the right to participate in the Proceeding be represented by counsel and accountants, at its own expense andexpense, except and shall be kept fully informed as otherwise provided belowto 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 Legal Action, or if the indemnified party shall have reasonably concluded that there are likely to be defenses available to the extent indemnified party that are different from or in addition to those available to the Company so desires, indemnifying party (in which case the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company indemnifying party shall not be entitled to assume the defense of any Proceeding (a) brought by the Company, or (b) as to which Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 If the Company assumes the defense, Indemnitee shall furnish such information regarding Indemnitee or the Proceeding in question, as the Company may reasonably request and as may be required in connection with the defense or settlement of such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 below, if the Company assumes the defense of the Proceeding, the Company shall take all necessary steps in good faith to defend, settle or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume the defense of any Proceeding, the Company will not be liable to Indemnitee under this Agreement or otherwise for any Expenses in excess of $10,000 subsequently incurred by Indemnitee in connection with the defense of such Proceeding other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee Legal Action but shall have the right to employ Indemnitee's be represented by counsel and accountants, at its own counsel in expense, and shall be kept fully informed as to such ProceedingLegal Action at all stages thereof whether or not represented by its own counsel), but all Expenses related thereto in excess of $10,000 legal or other expenses reasonably incurred after notice from by the Company of indemnified party shall be borne by the indemnifying party. The indemnifying party shall make available to the indemnified party and its assumption attorneys and accountants all books and records of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee indemnifying party relating to such Legal Action and the Company 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 the Proceeding, but Indemnitee does not, in fact, assume and conduct the defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of any such ProceedingLegal Action.
Appears in 1 contract
Defense. With The Indemnifying Party shall have the right to direct, through counsel of its own choosing, the defense or settlement of any action or proceeding brought against the Indemnified Party in respect of Third Party Claims; provided, however, that the Indemnifying Party 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, regardless of the terms of such settlement, if the Indemnifying Party disputes its liability with respect to any Proceeding, the Company will be ------- entitled to participate in Third Party Claim. If the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so desires, the Company may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. However, the Company shall not be entitled Indemnifying Party elects to assume the defense of any Proceeding (a) brought by such claim or proceeding, the Company, or (b) as to which Indemnitee has reasonably determined that there Indemnified Party may be a conflict of interest between Indemnitee and the Company participate in the such defense of the Proceeding and Indemnitee does in fact assume and conduct the defense.
4.2.1 at its own expense. If the Company assumes 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 result of a settlement, the defenseIndemnified Party shall have the right to direct, Indemnitee shall furnish such information regarding Indemnitee or at the Proceeding in questionIndemnifying Party's sole cost and expense, as the Company may reasonably request and as may be required in connection with through counsel of its own choosing, the defense or settlement of any such Proceeding and shall fully cooperate with the Company in every other respect. Except as provided in Section 4.3 belowaction or proceeding; provided, however, that if the Company Indemnified Party assumes the defense of any such claim or proceeding 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, then the Proceeding, Indemnified Party shall give the Company Indemnifying Party prompt written notice thereof and the Indemnifying Party shall take all necessary steps have the right to participate in good faith and consent (which consent shall not be unreasonably withheld) to defend, settle the settlement or otherwise dispose of the Proceeding.
4.2.2 After notice from the Company to Indemnitee of its election to assume or reassume the defense of any Proceedingsuch claim or proceeding. Notwithstanding the 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 Company Indemnifying Party will not be liable required to Indemnitee under bear the costs and expenses of the Indemnified Party's defense pursuant to this Agreement or otherwise SECTION 10.3(b), and the Indemnified Party shall reimburse the Indemnifying Party in full for any Expenses in excess of $10,000 subsequently all costs and expenses incurred by Indemnitee the Indemnifying Party in connection with such Third Party Claim. The party directing the defense shall pursue such defense diligently and promptly. The parties shall cooperate in the defense of all Third Party Claims. In connection with the defense of any Third Party Claim, each party shall make available to the party controlling such Proceeding defense any books, records, or other than reasonable costs of investigation or as otherwise provided in clauses (a) through (c) below. Indemnitee shall have the right to employ Indemnitee's own counsel in such Proceeding, but all Expenses related thereto in excess of $10,000 incurred after notice from the Company of documents within its assumption of the defense shall be at Indemnitee's expense, unless: (a) the employment of counsel by Indemnitee has been authorized by the Company; (b) Indemnitee has control that are reasonably determined that there may be a conflict of interest between Indemnitee and the Company requested in the defense course of the Proceeding, but Indemnitee does not, in fact, assume and conduct the or necessary or appropriate for such defense; or (c) the Company has not, in fact, assumed and is not conducting the defense of such Proceeding.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Zenith National Insurance Corp)