Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Ekso Bionics Holdings, Inc.), Agreement and Plan of Merger and Reorganization (Enumeral Biomedical Holdings, Inc.), Agreement and Plan of Merger and Reorganization (Akoustis Technologies, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any Damages that may be assessed against the Indemnified Party in connection with such Third Party Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the amount of damages claimed is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit Third Party Action. Notwithstanding any other provision of this Agreement, the reasonable fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or proceeding(ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. If the Indemnified Party withholds its consent to any such settlement or entry of judgment which settlement or entry of judgment relates to cash Damages only, then the liability of the Indemnifying Party to the Indemnified Party with respect to the matter which would have been concluded or settled shall be limited to the amount for which such matters could have been concluded or settled but for the fact the Indemnified Party withheld its consent. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Suncrest Global Energy Corp), Asset Purchase Agreement (Suncrest Global Energy Corp), Agreement and Plan of Merger (Suncrest Global Energy Corp)
Indemnification Claims. A party (athe "Indemnified Party") In entitled to indemnification from another party under the event terms of this Agreement (the Parent or "Indemnifying Party") shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an "Indemnity Notice") of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party's prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth in this Section 8.03, the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent of Indemnifying Party pays for any loss, damage or expense suffered by the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnified Party hereunder.
Appears in 3 contracts
Samples: Capacity Purchase Agreement (Continental Airlines Inc /De/), Capacity Purchase Agreement (Expressjet Holdings Inc), Capacity Purchase Agreement (Expressjet Holdings Inc)
Indemnification Claims. If any Regency Party asserts a claim for payment from HEP in respect of any Damages under Section 11.2 of the Contribution Agreement (a) In other than pursuant to Section 11.2(c)), such Regency Party shall deliver a copy of the event written notice required under Section 11.3 of the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification Contribution Agreement to the Company Stockholders or Escrow Agent. HEP and such Regency Party shall resolve any disagreement relating to such indemnification claim in accordance with the Parent (as the case may be) terms of the commencement Contribution Agreement. Within five (5) business days after resolution between HEP and such Regency Party of such indemnification claim, whether by mutual agreement or by litigation, HEP and Regency shall deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to liquidate, on behalf of HEP and in accordance with the provisions of Section 5 below, such number of Purchase Price Units comprising the Escrow Units as shall be necessary (taking into account any cash or cash equivalent amounts then comprising the Escrow Amount) to satisfy the payment of such indemnification claim. Upon resolution of any suit or proceeding disagreement relating to a third party any such indemnification claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceedinglitigation, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party if HEP does not so assume control of timely provide such defensejoint instruction, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) Regency may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any provide Escrow Agent a sole written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationinstruction, which shall not be unreasonably withheld or delayed; provided that the consent certify and attach a copy of the party seeking final, unappealable judgment of the relevant court, directing the Escrow Agent to liquidate, on behalf of HEP and in accordance with the provisions of Section 5 below, such number of Purchase Price Units comprising the Escrow Units as shall be necessary (taking into account any cash or cash equivalent amounts then comprising the Escrow Amount) to satisfy the payment of such indemnification claim. Upon receipt of such joint or sole notice, Escrow Agent shall not be required if promptly liquidate the indemnifying party agrees necessary number of Purchase Price Units in writing to accordance with the provisions of Section 5 below and pay any amounts payable pursuant the full amount of such Damages to such settlement or judgment Regency Party. Regency agrees that it will endeavor to make only one (1) aggregate claim for payment of any and such settlement or judgment includes a complete release all indemnification claims under Article 11 of the party seeking Contribution Agreement (other than Section 11.2(c)), and in any event will make no more than three (3) such claims for payment (each of which claims for payment will be for any and all resolved indemnification from further liability and has no other materially adverse effect on claims up to the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry point of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedpayment).
Appears in 3 contracts
Samples: Contribution Agreement, Contribution Agreement (Regency Energy Partners LP), Escrow Agreement (Regency Energy Partners LP)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall promptly furnish the Controlling Party with such information as it may have or receive with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (x) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 5.3 or (y) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 3 contracts
Samples: Assignment and Assumption Agreement (Nanometrics Inc), Assignment and Assumption Agreement (Zygo Corp), Assignment and Assumption Agreement (Zygo Corp)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders Stockholder are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders Stockholder (as the case may be) shall give written notification to the Company Stockholders Stockholder or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party as reasonably needed in the defense of such suit or proceedingproceeding at the sole cost and expense of the indemnifying party under Section 6.1 or 6.2, which cost and expense shall be considered “Damages” for purposes of this Agreement. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Ds Healthcare Group, Inc.), Agreement and Plan of Merger (Ds Healthcare Group, Inc.), Agreement and Plan of Merger and Reorganization (Ds Healthcare Group, Inc.)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from another party under the event terms of this Agreement (the Parent or “Indemnifying Party”) shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party's prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.03, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 2 contracts
Samples: Capacity Purchase Agreement (Republic Airways Holdings Inc), Capacity Purchase Agreement (Republic Airways Holdings Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Claim. Such notification shall be given within 20 Business Days thirty (30) days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Claim, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Claim and the amount of the damages claimed damagestherein (if specified); provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except and only to the extent of any damage that the Indemnifying Party is actually prejudiced by such delay or liability caused by or arising out of such failure. Within 20 twenty (20) days after delivery of such notification, the indemnifying party mayIndemnifying Party shall have the right to, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of and conduct, at the Indemnifying Party’s sole cost and expense, the defense of such suit or proceeding Third Party Claim (with counsel of national standing reasonably satisfactory to the party seeking indemnificationIndemnified Party); provided provided, that (i) as a condition precedent to the Indemnifying Party’s right to assume and conduct such defense, within fifteen (15) days after the Indemnified Party has given notice of such Third Party Claim, (A) the Indemnifying Party must notify the Indemnified Party in writing that the indemnifying party Indemnifying Party shall undertake the defense of such Third Party Claim and (B) the Indemnifying Party must agree in writing with the Indemnified Party to unconditionally indemnify the Indemnified Party from and against all such Losses that the Indemnified Party may suffer or incur or to which the Indemnified Party may otherwise become subject and which arise from or as a result of or are connected with such Third Party Claim (subject to the limitations set forth in Section 13.6), and (ii) the Indemnifying Party may not assume control of the defense of or conduct the defense of, any Third Party Claim to the extent such claim constitutes a suit Third Party Claim (A) involving any criminal or proceeding involving quasi-criminal liability Proceeding, action, indictment, allegation or investigation or seeking to impose any criminal penalty, fine or other sanction, (B) made by any Governmental Authority or to which any Governmental Authority is a named party, (C) in which relief other than monetary Losses is sought, including any injunctive or other equitable relief is sought against relief, (D) which, if adversely determined, would reasonably be expected, in the party seeking indemnification. If good faith judgment of the indemnifying party does not so assume control of such defenseIndemnified Party, to establish a precedent, custom or practice materially adverse to the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting continuing business interests or different defenses available prospects of the Indemnified Party or its Affiliates, or (E) that could, in the good faith judgment of the Indemnified Party, reasonably be expected to result in Losses in excess of the Cap (and for purposes of any claims with respect to breaches of the representations and warranties other than the Seller Fundamental Representations or the Buyer Fundamental Representations, as applicable) or otherwise in excess of the maximum liability of the Seller Indemnifying Parties or the Buyer Indemnifying Parties, as applicable under this Article 13. For avoidance of doubt, in the event that a Seller or one or more of its Affiliates and the Buyer or one or more of its Affiliates is named in an Proceeding, such suit or proceeding, Seller and the reasonable fees and expenses of counsel to the party seeking indemnification Buyer shall be considered “Damages” for purposes entitled to assume the control of this Agreement. The party controlling and conduct of their own defense and select counsel of their own choosing to defend their respective interests in such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedProceeding.
Appears in 2 contracts
Samples: Asset Purchase Agreement (SPRINT Corp), Asset Purchase Agreement (T-Mobile US, Inc.)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from another party under the event terms of this Agreement (the Parent or “Indemnifying Party”) shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.03, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 2 contracts
Samples: Capacity Purchase Agreement (Pinnacle Airlines Corp), Capacity Purchase Agreement (Republic Airways Holdings Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount or good faith estimate of the claimed damagesDamages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not so permitted under the terms hereof, to assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party reasonable fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a). The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially material adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Purchase Agreement (Integrated Health Technologies Inc), Purchase Agreement (Integrated Health Technologies Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) The Buyer shall give written notification to the Company Stockholders or the Parent (as the case may be) Representative of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Buyer of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationBuyer) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no . No delay or failure on the part of the party seeking indemnification Buyer in so notifying the indemnifying party Representative shall relieve the indemnifying party Equity Holders of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Representative may, upon written notice thereof to the party seeking indemnificationBuyer, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationBuyer; provided that (i) the indemnifying party Representative may only assume control of such defense if (A) he, she or it acknowledges in writing to the Buyer that any damages, fines, costs or other liabilities that may be assessed against the Buyer in connection with such Third Party Action constitute Damages for which the Buyer shall be indemnified pursuant to this Article VI, (B) the ad damnum does not exceed 110% of the amount of Damages for which the Equity Holders are liable under this Article VI, and (C) an adverse resolution of the Third Party Action would not have a material adverse effect on the goodwill or reputation of the Buyer or the business, operations or future conduct of the Buyer and (ii) the Representative may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationBuyer and may not assume control of any Tax Proceeding to the extent such Tax Proceeding involves consolidated or combined Tax Returns of the Buyer for any Tax period (or portion thereof) after the Closing Date or a potential Tax liability which may exceed 110% of the amount for which the Equity Holders may be liable under this Article VI after taking into account the amount of all other liabilities for which claims have been made by the Buyer. If the indemnifying party Representative does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Buyer shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Buyer with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Buyer controls the defense of such Third Party Action pursuant to the terms of this Section 6.2(a) or (ii) the Representative assumes control of such defense and the Buyer reasonably concludes that the Representative and the Buyer have conflicting interests or different defenses available with respect to such Third Party Action. The Representative shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationBuyer, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Buyer shall not be required if the indemnifying party Representative agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Buyer from further liability and has no other materially adverse effect on the party seeking indemnificationBuyer. The party seeking indemnification Except as provided in Section 6.2(f) below, the Buyer shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyRepresentative, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Akamai Technologies Inc), Agreement and Plan of Merger (Akamai Technologies Inc)
Indemnification Claims. A party entitled to indemnification (athe “Indemnified Party”) In from another party under the event terms of this Agreement (the Parent or “Indemnifying Party”) shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.03, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 2 contracts
Samples: Airline Services Agreement (Republic Airways Holdings Inc), Airline Services Agreement (Republic Airways Holdings Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.), Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from another party under the terms of this Agreement (the “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim or other claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. Notwithstanding the foregoing, the failure of an Indemnified Party to promptly provide an Indemnity Notice shall not constitute a waiver by the Indemnified Party to any right to indemnification or otherwise relieve such Indemnifying Party from any liability hereunder unless and only to the extent that the Indemnifying Party is materially prejudiced as a result thereof, and in any event shall not relieve such Indemnifying Party from any liability which it may have otherwise than on account of this Article VII. With respect to third party claims, the Parent or the Company Stockholders are Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld, conditioned or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.3, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not waive any of its rights hereunder to later seek reimbursement from the Indemnifying Party. With respect to all other claims, the Indemnifying Party shall not be required promptly make payment of such claim upon receipt of reasonably sufficient evidence supporting such claim; provided, that if the indemnifying party agrees Indemnifying Party in writing good faith disputes all or part of its obligation to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of indemnify the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, Indemnified Party hereunder or the entry amount involved, the senior management of any judgment arising fromeach party shall meet to discuss and attempt to resolve such dispute between the parties and, any if such suit or proceeding without dispute is not resolved within forty-five (45) days of such claim being made, then the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedparties may pursue other remedies.
Appears in 2 contracts
Samples: Capacity Purchase Agreement (Mesa Air Group Inc), Capacity Purchase Agreement (Mesa Air Group Inc)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from the event other party under the Parent or terms of this Agreement (the Company Stockholders are “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder, and the Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth above in this Section 12(G), the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent Indemnifying Party pays for any Loss suffered by the Indemnified Party hereunder. Notwithstanding anything contained in this Section 12(G) to the contrary, ASA and Delta will cooperate in the defense of any claim imposed jointly against them or as the result of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release conduct of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedother.
Appears in 2 contracts
Samples: Delta Connection Agreement (Skywest Inc), Delta Connection Agreement (Skywest Inc)
Indemnification Claims. (a) In the event the Parent Acquiror or the Company Acquiree Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent Acquiror or the Company Acquiree Stockholders (as the case may be) shall give written notification to the Company Acquiree Stockholders or the Parent Acquiror (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Share Exchange Agreement (China Energy Technology Corp., Ltd.), Share Exchange Agreement (Symbid Corp.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days 30 days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of and thereafter conduct the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article IX, (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article IX and (C) such Third Party Action does not involve a criminal proceeding, action, indictment, allegation or investigation or seek equitable relief or relief for other than money damages against the Indemnified Party and (ii) the Indemnifying Party may only conduct such defense of such Third Party Action for as long as it does so actively and diligently. If the Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defenseThird Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have and as reasonably requested with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party reasonable fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 9.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Care.com Inc), Equity Purchase Agreement (Care.com Inc)
Indemnification Claims. (a) In the event that any of the Parent or the Company Stockholders Parties are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent Party or Parties seeking indemnification (the Company Stockholders (as the case may be“Indemnified Parties”) shall give written notification to the Company Stockholders other Party or Parties (the Parent (as the case may be“Indemnifying Parties”) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification Indemnified Parties of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Parties) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Parties in notifying the indemnifying party Indemnifying Parties shall relieve the indemnifying party Indemnifying Parties of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Parties may, upon written notice thereof to the party Indemnified Parties seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party Indemnified Party seeking indemnification; provided that the indemnifying party Indemnifying Parties may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party Indemnified Party seeking indemnification. If the indemnifying party does Indemnifying Parties do not so assume control of such defense, the party Indemnified Parties seeking indemnification shall control such defense. The party Party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party Indemnifying Parties assumes control of such defense and the party Indemnified Parties seeking indemnification reasonably concludes that the indemnifying party Indemnifying Parties and the party Indemnified Parties seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Parties shall be considered “Damages” for purposes of this Agreement. The party Party or Parties controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party as reasonably needed in the defense of such suit or proceedingproceeding at the sole cost and expense of the Indemnifying Parties under Section 6.1 or 6.2, which cost and expense shall be considered “Damages” for purposes of this Agreement. The indemnifying party Indemnifying Parties shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Parties, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Parties shall not be required if the indemnifying party Indemnifying Parties agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Parties from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Parties. The party seeking indemnification Indemnified Parties shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Parties, which shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ds Healthcare Group, Inc.), Asset Purchase Agreement (Ds Healthcare Group, Inc.)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from the event other party under the Parent or terms of this Agreement (the Company Stockholders are “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder, and the Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth above in this Section 9.02(g), the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent Indemnifying Party pays for any Loss suffered by the Indemnified Party hereunder. Notwithstanding anything contained in this Section 9.02(g) to the contrary, any Pinnacle Party and Delta will cooperate in the defense of any claim imposed jointly against them or as the result of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release conduct of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedother.
Appears in 2 contracts
Samples: 2010 Delta Connection Agreement (Pinnacle Airlines Corp), 2010 Delta Connection Agreement (Pinnacle Airlines Corp)
Indemnification Claims. If there occurs an event which a party hereto asserts is an indemnifiable event pursuant to Section 8.01, 8.02 or 8.03, such party (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be"Indemnified Party") shall give written notification to notify the Company Stockholders other party (the "Indemnifying Party") promptly. If such event involves (i) any claim or the Parent (as the case may beii) of the commencement of any suit action or proceeding relating to by a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by person, the party seeking indemnification of Indemnified Party will give such Indemnifying Party prompt written notice of such suit claim or the commencement of such action or proceeding, and . Such notice shall describe in reasonable detail (be a condition precedent to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount any liability of the claimed damagesIndemnifying Party hereunder; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall failure to provide prompt notice as provided herein will relieve the indemnifying party Indemnifying Party of any liability or obligation its obligations hereunder except only to the extent that such failure prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnified Party and it shall notify the Indemnifying Party of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notificationthe commencement thereof, the indemnifying party mayIndemnifying Party shall be entitled to participate therein and, upon written notice thereof to the party seeking indemnificationextent that it shall wish, to assume control of the defense of such suit or proceeding thereof with counsel reasonably satisfactory to the party seeking indemnification; provided that Indemnified Party and, after notice from the indemnifying party may not Indemnifying Party to the Indemnified Party of such election so to assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defensethereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses of other counsel or any other expenses subsequently incurred by such party seeking indemnification shall control such defensein connection with the defense thereof. The party not controlling Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the defense against any such defense (asserted liability. The Indemnified Party shall have the “Non-Controlling Party”) may right to participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party expense in the defense of such suit or proceedingasserted liability. The indemnifying party No Indemnifying Party shall not agree consent to any settlement of, or the entry of any judgment arising from, or enter into any such suit or proceeding settlement without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall Indemnified Party (A) if such judgment or settlement does not be required if include as an unconditional term thereof the indemnifying party agrees giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in writing to pay any amounts payable pursuant respect to such claim, (B) if such judgment or settlement would result in the finding or admission of any violation of law, or (C) if as a result of such consent or settlement injunctive or other equitable relief would be imposed against the Indemnified Party or such judgment and such or settlement could interfere with or judgment includes a complete release adversely affect the business, operations or assets of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnified Party.
Appears in 2 contracts
Samples: Acquisition Agreement (Autocorp Equities Inc), Acquisition Agreement (Autocorp Equities Inc)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from the event other party under the Parent or terms of this Agreement (the Company Stockholders are “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder, and the Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth above in this Section 12(G), the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent Indemnifying Party pays for any Loss suffered by the Indemnified Party hereunder. Notwithstanding anything contained in this Section 12(G) to the contrary, SKYW and Delta will cooperate in the defense of any claim imposed jointly against them or as the result of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release conduct of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedother.
Appears in 2 contracts
Samples: Delta Connection Agreement (Skywest Inc), Delta Connection Agreement (Skywest Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non-controlling Party may participate in any such contest, defense, litigation or settlement conducted by the Controlling Party”) may participate therein , and be represented by counsel, at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint complaint, or other pleading which that may have been served on such party and any written claim, demand, invoice, billing billing, or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned, or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned, or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Fabri Steel Products Inc), Asset Purchase Agreement (Fabri Steel Products Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days twenty (20) days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action for such portion of such Third Party Action involving criminal liability of an Indemnified Party or in which equitable relief is sought against the party seeking indemnificationIndemnified Party that, if granted, would materially and adversely affect the Indemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.5. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability. In the event that the Indemnified Party fails to provide its consent to a firm settlement offer, the maximum liability and has no other materially adverse effect on of the party seeking indemnificationIndemnifying Party shall not exceed the amount of such firm settlement offer. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Erasca, Inc.), Asset Purchase Agreement (Erasca, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third A party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Indemnified Party”) that may participate therein at its own expense; provided that if be entitled to indemnification from another party under the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes terms of this Agreement. The party controlling such defense Agreement (the “Controlling Indemnifying Party”) shall keep provide the NonIndemnifying Party with prompt written notice (an “Indemnity Notice”) of any third-Controlling party claim which the Indemnified Party advised believes may give rise to a claim for indemnity against the Indemnifying Party hereunder. Notwithstanding the foregoing, the failure of an Indemnified Party to promptly provide an Indemnity Notice shall not constitute a waiver by the status Indemnified Party of any right to indemnification or otherwise relieve such suit or proceeding Indemnifying Party from any liability hereunder unless and only to the extent that the Indemnifying Party is materially prejudiced as a result thereof, and in any event shall not relieve such Indemnifying Party from any liability which it may have otherwise than on account of this Article VII. The Indemnifying Party shall be entitled, if it accepts financial responsibility for the third-party claim, to control the defense thereof of or to settle any such third-party claim at its own expense and shall consider in good faith recommendations made by its own counsel; provided, that the NonIndemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third-Controlling Party with respect theretoparty claim. The Non-Controlling Indemnified Party shall furnish promptly provide the Controlling Indemnifying Party with such information as it may have with respect the Indemnifying Party shall reasonably request to defend any such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such third-party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) claim and shall otherwise cooperate with and assist the Controlling Indemnifying Party in the defense of any such suit or proceedingthird-party claim. The indemnifying party Except as set forth in this Section 7.03, the Indemnified Party shall not agree to enter into any settlement of, or other compromise or consent to a judgment with respect to a third-party claim as to which the entry of any judgment arising from, any such suit or proceeding Indemnifying Party has an indemnity obligation hereunder without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third-party claim or fails to defend against the third-party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third-party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third-party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 2 contracts
Samples: Capacity Purchase Agreement (Skywest Inc), Capacity Purchase Agreement (Skywest Inc)
Indemnification Claims. A party (athe “Indemnified Party”) In entitled to indemnification from the event other party under the Parent or terms of this Agreement (the Company Stockholders are “Indemnifying Party”) shall provide the Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder, and the Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party’s prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth above in this Section 12G, the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent Indemnifying Party pays for any Loss suffered by the Indemnified Party hereunder. Notwithstanding anything contained in this Section 12G to the contrary, Parent, Operator and Delta will cooperate in the defense of any claim imposed jointly against them or as the result of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release conduct of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedother.
Appears in 2 contracts
Samples: Saab 340b+ Delta Connection Agreement (Pinnacle Airlines Corp), Saab 340b+ Delta Connection Agreement (Pinnacle Airlines Corp)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) it acknowledges -43- 48 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Unisphere Networks Inc), Loan and Security Agreement (Unisphere Networks Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days 10 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall 35 otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article V and (B) the maximum amount claimed is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article V and (ii) without the prior written consent of the Indemnified Partly, the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the Indemnified Party. Notwithstanding the foregoing, no party seeking indemnificationthat is found by a court of competent jurisdiction to have committed or engaged in fraud shall be entitled to indemnification hereunder nor shall any party be entitled to indemnification if the payment of such indemnification is found by a court of competent jurisdiction to be contrary to public policy. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 5.2(b) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hei Inc)
Indemnification Claims. (ai) In the event the Parent or the Company Stockholders are A Party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders Section 7 (as the case may bean "INDEMNIFIED PARTY") shall give written notification (a "NOTIFICATION OF SUIT") to the Company Stockholders or the Parent Party from whom indemnification is sought (as the case may bean "INDEMNIFYING PARTY") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI Section 7 may be sought. Such notification Notification of Suit shall be given within 20 Business Days 30 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notificationNotification of Suit, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding if, but only if, the Indemnifying Parties acknowledge in writing their obligation to indemnify the Indemnified Parties hereunder against any Damages that such Indemnified Parties incur or have incurred in connection with counsel reasonably satisfactory to the such third party seeking indemnificationclaim; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “Non"NON-Controlling Party”CONTROLLING PARTY") may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party Party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inverness Medical Innovations Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the Indemnifying Party shall not have the right to assume control of such defense and the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days 30 days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability primarily caused by or primarily arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding any Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification any Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party agrees in writing to pay Indemnifying Party pays any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders 8 (as the case may bean "Indemnified Party") shall give written notification (a "Notification of Suit") to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI 8 may be sought. Such notification Notification of Suit shall be given within 20 Business Days 30 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notificationNotification of Suit, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory if, but only if, either (i) the Indemnified Party has notified the Indemnifying Party that it will not defend the suit or proceeding, or (ii) the Indemnified Party has failed to timely defend the party seeking indemnificationsuit or proceeding; provided PROVIDED, HOWEVER, that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying Indemnifying Parties assume control of the defense pursuant to (i) or (ii) above, the Indemnifying Parties shall acknowledge in writing their obligation to indemnify the Indemnified Parties hereunder against any Damages that such Indemnified Parties incur or have incurred in connection with such third party claim. If the Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which consent shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Avant Immunotherapeutics Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided PROVIDED that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the AD DAMNUM is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Action; PROVIDED that, with respect to each of (i) and (ii) in the foregoing sentence, the Indemnified Party is entitled to be indemnified hereunder with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third A party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Indemnified Party”) may participate therein at its own expense; provided that if entitled to indemnification from another party under the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes terms of this Agreement. The party controlling such defense Agreement (the “Controlling Indemnifying Party”) shall keep provide the Non-Controlling Indemnifying Party advised with prompt written notice (an “Indemnity Notice”) of any third party claim or other claim which the status Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. Notwithstanding the foregoing, the failure of such suit or proceeding and the defense thereof and an Indemnified Party to promptly provide an Indemnity Notice shall consider in good faith recommendations made not constitute a waiver by the Non-Controlling Indemnified Party with respect thereto. The Non-Controlling to any right to indemnification or otherwise relieve such Indemnifying Party from any liability hereunder unless and only to the extent that the Indemnifying Party is materially prejudiced as a result thereof, and in any event shall furnish the Controlling not relieve such Indemnifying Party with such information as from any liability which it may have with otherwise than on account of this Article VII. With respect to such suit or proceeding (including copies of any summonsthird party claims, complaint or other pleading which may have been served on such the Indemnifying Party shall be entitled, if it accepts financial responsibility for the third party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in to control the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, settle any such suit or proceeding third party claim at its own expense and by its own counsel; provided that no settlement by the Indemnifying Party of such a claim will be binding on the Indemnified Party for purposes of the indemnification provisions hereof without the prior written consent of the party seeking indemnificationsuch Indemnified Party to such settlement, which shall consent may not be unreasonably withheld withheld, conditioned or delayed; provided that . The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Section 7.3, no settlement or other compromise or consent to a judgment by the Indemnified Party with respect to a third party claim as to which the Indemnifying Party is asserted to have an indemnity obligation hereunder will be binding on the Indemnifying Party for purposes of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding provisions hereof without the prior written consent of the indemnifying partysuch Indemnifying Party to such settlement, which shall consent may not be unreasonably withheld withheld, conditioned or delayed, it being agreed however that it shall be reasonable for the Indemnifying Party to withhold or delay its consent if the Indemnifying Party reasonably asserts that the claim is not fully covered by the indemnity provided hereunder, and the entering into of 63 any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within thirty (30) days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not waive any of its rights hereunder to later seek reimbursement from the Indemnifying Party. With respect to all other claims, the Indemnifying Party shall promptly make payment of such claim upon receipt of reasonably sufficient evidence supporting such claim; provided, that if the Indemnifying Party in good faith disputes all or part of its obligation to indemnify the Indemnified Party hereunder or the amount involved, the senior management of each party shall meet to discuss and attempt to resolve such dispute between the parties and, if such dispute is not resolved within forty-five (45) days of such claim being made, then the parties may pursue other remedies.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders Section 8 (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI Section 8 may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damageslosses; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any losses, fines, costs or other liabilities that may be assessed against the Indemnified Party in connection with such suit or proceeding constitute Losses for which the Indemnified Party shall be indemnified pursuant to this Section 8 and (B) the ad damnum is less than or equal to the amount of Losses for which the Indemnifying Party is liable under this Section 8 and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “Damages” "losses" for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the “extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding any Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Samples: Services Agreement (Lydall Inc /De/)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders IV (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI IV may be sought. Such notification shall be given within 20 Business Days 5 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided PROVIDED that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article IV and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article IV and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided PROVIDED that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek An Indemnified Party seeking to assert rights, rights to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) VI shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of written notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.respect
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damagesDamages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except except, and solely, to the extent of any damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Samples: Share Purchase Agreement
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders IX (as the case may bean "INDEMNIFIED PARTY") shall give written notification (a "NOTIFICATION OF SUIT") to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "INDEMNIFYING PARTY") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI IX may be sought. Such notification Notification of Suit shall be given within 20 Business Days 30 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notificationNotification of Suit, the indemnifying party Indemnifying Party (through the Indemnification Representative in the event the Indemnified Party is a Parent Indemnified Party) may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding if, but only if, the Indemnifying Parties acknowledge in writing their obligation to indemnify the Indemnified Parties hereunder against any Damages that such Indemnified Parties incur or have incurred in connection with counsel reasonably satisfactory to the such third party seeking indemnificationclaim; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non"NON-Controlling Party”CONTROLLING PARTY") may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Inverness Medical Technology Inc/De)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek A Party seeking to assert rights, rights to indemnification under this Article VI, VIII (the Parent or the Company Stockholders (as the case may be"Indemnified Party") shall give written notification to the Company Stockholders or ----------------- party from which indemnification is sought (the Parent (as the case may be"Indemnifying Party") of the ------------------ commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI VIII may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such action, suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such action, suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; Indemnified Party, provided the Indemnifying Party acknowledges in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the indemnifying party may not assume control of the defense of a Indemnified Party in connection with such action, suit or proceeding involving criminal liability or in constitute Damages for which equitable relief is sought against the party seeking indemnificationIndemnified Party shall be indemnified pursuant to this Article VIII. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “"Non-Controlling Party”") --------------------- may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party Party controlling such defense (the “"Controlling Party”") shall keep the Non-Non- ----------------- Controlling Party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such action, suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such action, suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cornerstone Brands Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days 15 days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damagesDamages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified in accordance with the terms, conditions and limitations set forth in this Article VIII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action which is requested by the Controlling Party (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 8.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, after consultation with legal counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed; provided the Indemnifying Party shall not be required to obtain such consent if (I) there is no finding or admission of any violation of law or any violation of the rights of any person or entity and (II) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed; , provided that the consent of the party seeking indemnification Indemnified Party shall not be required to obtain such consent if the indemnifying party agrees in writing to pay (I) there is no finding or admission of any amounts payable pursuant to such settlement violation of law or judgment and such settlement or judgment includes a complete release any violation of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry rights of any judgment arising from, person or entity and (II) the sole relief provided is monetary damages that are paid in full by the Indemnified Person without any such suit or proceeding without recourse against the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Person.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bottomline Technologies Inc /De/)
Indemnification Claims. (a) In the event the The Buyer or Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) Representatives of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Buyer or Parent of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationBuyer or Parent) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no . No delay or failure on the part of the party seeking indemnification Buyer or Parent in so notifying the indemnifying party Representatives shall relieve the indemnifying party Company Shareholders of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Representatives may, upon written notice thereof to the party seeking indemnificationBuyer and Parent, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationBuyer and Parent; provided that (i) the indemnifying party Representatives may only assume control of such defense if (A) they acknowledge in writing to the Buyer and Parent on behalf of all of the Company Shareholders that any damages, fines, costs or other liabilities that may be assessed against the Buyer or Parent in connection with such Third Party Action constitute Damages for which the Buyer or Parent shall be indemnified pursuant to this Article VI, (B) the ad damnum in such Third Party Action, 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 current balance of the Escrow Fund, and (C) an adverse resolution of the Third Party Action would not have a material adverse effect on the goodwill or reputation of the Buyer or Parent or the business, operations or future conduct of the Buyer or Parent and (ii) the Representatives may not assume control of the defense of a suit any Third Party Action involving Taxes or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationBuyer or Parent or any of its subsidiaries. If the indemnifying party does Representatives do not, or are not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Buyer and/or Parent shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Buyer and Parent with respect to a Third Party Action shall not be considered Damages for purposes of this Agreement if (i) the Buyer or Parent controls the defense of such Third Party Action pursuant to the terms of this Section 6.2(a) or (ii) the Representatives assume control of such defense and the Buyer or Parent reasonably concludes that the Company Shareholders and the Buyer or Parent have conflicting interests or different defenses available with respect to such Third Party Action. Neither the Company Shareholders nor the Representatives shall agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationBuyer and Parent, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Buyer and Parent shall not be required if the indemnifying party agrees Representatives, on behalf of all of the Company Shareholders, agree in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Buyer and Parent from further liability and has no other materially adverse effect on the party seeking indemnificationBuyer or Parent. The party seeking indemnification Except as provided in Section 6.2(e) below, the Buyer and Parent shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyRepresentatives, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) The indemnified party shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying provide the indemnifying party prompt notice ("Demand") of any such claims of liability with reasonable promptness and the indemnifying party, at its election, shall relieve have the right of defense in such proceedings, by counsel of its own choosing, at the indemnifying party's expense. The indemnified party shall cooperate fully in all reasonable respects with the indemnifying party of in any liability or obligation hereunder except such defense, including by making available to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to all pertinent information under the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationindemnified party. If the indemnifying party does not so assume control agree by written notice to defend the indemnified party within five (5) Business Days of the Demand, then the indemnified party may defend or settle such defenseclaim or action at the indemnifying party's sole cost and expense in such manner as the indemnified party deems appropriate, the party seeking indemnification shall control such defensein its sole discretion. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if If the indemnifying party assumes control agrees to defend the indemnified party within such time period, then the indemnifying party may defend, but not settle, a claim without waiving its right to assert that such claim is not subject to the indemnity agreements in this Section 12, unless such settlement: (i) involves only the payment of such defense money [subject to Section 12.01(b)] and (ii) the indemnifying party seeking indemnification obtains a reasonably concludes that satisfactory release from the third party in favor of both the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreementindemnified party. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if If the indemnifying party agrees elects to defend a claim, the indemnified party may, at the indemnified party's expense, participate in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release matter with counsel of the party seeking indemnification indemnified party's own choosing. Buyer will not destroy any books, records or files relating to Business which are transferred to Buyer as part of the Property for a period of seven (7) years from further liability the Closing Date. Following the Closing Date, Seller and has no its agents and representatives shall have access to these items, during Business Hours and after reasonable notice to Buyer, for legitimate business reasons, including use in litigation, tax and other materially adverse effect on the party seeking indemnificationmatters. The party seeking indemnification Seller shall not agree be entitled to any settlement ofcopy these books, records or the entry of any judgment arising fromfiles at its expense. At Seller's expense, any such suit or proceeding Buyer shall also make available to Seller, without the prior written consent necessity of subpoena, current employees of the indemnifying partyBusiness who previously worked for Seller whose assistance is required in litigation, tax and other matters relating to the Business. Buyer, at its expense, shall be entitled to reasonable cooperation from Seller during Business Hours following reasonable notice in connection with financial, tax and similar matters relating to the Business which shall not be unreasonably withheld or delayedarose prior to the Closing Date.
Appears in 1 contract
Indemnification Claims. (a) In If any third party asserts any claim against any Purchaser Indemnitee or with respect to any matter which may give rise to a claim for indemnification against the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VISection 7.1 (a "Third Party Claim"), then the Parent or the Company Stockholders Purchaser Indemnitee will notify each Stockholder thereof in writing promptly and in any event within ten (as the case may be10) shall give days after receiving any written notification to the Company Stockholders or the Parent (as the case may be) notice of the commencement Third Party Claim stating the nature and basis of any suit or proceeding relating to the Third Party Claim and including a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt copy of all written materials provided by the party seeking indemnification of notice of such suit or proceedingthird party; provided that, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Purchaser Indemnitee in notifying the indemnifying party shall Stockholders will relieve the indemnifying party of Stockholders from any liability or obligation hereunder except unless, and then solely to the extent of any damage or liability caused that, Stockholders are prejudiced thereby in their ability to defend against the Third Party Claim. Stockholders may, by or arising out notice to the Purchaser Indemnitee within ten (10) days after receiving the Purchaser Indemnitee's notice, assume the defense of such failurematter, at Stockholders' sole cost and expense. Within 20 days after delivery of Any such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control will also specify whether Stockholders (notwithstanding their assumption of the defense of such suit matter) dispute or proceeding reserve the right to dispute their obligation to indemnify the Purchaser in respect of all or part of the underlying claim. If Stockholders assumes the defense of the Third Party Claim, (i) Stockholders will defend the Purchaser Indemnitee against the matter with counsel of Stockholders' choice reasonably satisfactory to the party seeking indemnificationPurchaser Indemnitee, (ii) the Purchaser Indemnitee may participate in the defense (including with separate counsel) at its sole cost and expense, subject to Stockholders' right to control the defense, (iii) Stockholders shall reasonably cooperate with the Purchaser Indemnitee in connection with the Purchaser Indemnitee's participation, and in all cases Stockholders shall keep the Purchaser Indemnitee reasonably informed as to all matters concerning the Third Party Claim and shall promptly notify the Purchaser Indemnitee in writing of any and all significant developments relating thereto; (iv) the Purchaser Indemnitee will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the written consent of Stockholders (which consent shall be in Stockholders' sole discretion), and (v) Stockholders will not consent to the entry of a judgment or consent order with respect to the matter, or enter into any settlement, without the written consent of the Purchaser Indemnitee (which consent shall be in the Purchaser Indemnitee's sole discretion); provided that the indemnifying party may Purchaser Indemnitee's consent shall not be required if such consent judgment, consent order or settlement (A) does not require the Purchaser Indemnitee to admit any guilt, responsibility or culpability, (B) does not grant the plaintiff or claimant any form of relief other than monetary damages which will be satisfied by Stockholders, and (C) includes a provision whereby the plaintiff or claimant in the matter releases the Purchaser Indemnitee from all Liability with respect thereto. If Stockholders do not timely assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought Third Party Claim, (i) the Purchaser Indemnitee may defend against the party seeking indemnificationmatter in any manner it reasonably deems appropriate, without prejudice to its claims against Stockholders hereunder, (ii) the Purchaser Indemnitee may defend the matter with counsel of its choice, and (iii) Stockholders may retain separate counsel at their sole cost and expense. If Notwithstanding anything to the indemnifying party does not so assume control of such defensecontrary in the foregoing, the party seeking indemnification shall control such defense. The party not controlling such defense if defendants in any Third Party Claim include any Purchaser Indemnitee and HoldCo or ODS, and Purchaser Indemnitee and Stockholders have been advised by independent counsel (the “Non-Controlling Party”chosen by agreement between Stockholders and Purchaser Indemnitee's respective counsel) that there may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different be material legal defenses available to such Purchaser Indemnitee inconsistent with those available to HoldCo or ODS (as applicable), or that a conflict of interest exists or may exist between Purchaser Indemnitee and HoldCo or ODS (as applicable) with respect to such suit claim or proceedingthe defense thereof, then in either case, the Purchaser Indemnitee shall have the right to employ its own counsel in such action, and in such event (or in the event that Stockholders do not timely assume the defense of such matter as provided above) the reasonable fees and expenses of the Purchaser Indemnitee's counsel to the party seeking indemnification and other appropriate advisors shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof borne by Stockholders and shall consider in good faith recommendations made be paid by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect them from time to such suit or proceeding time within twenty (including copies 20) days of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense receipt of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedappropriate invoices therefore.
Appears in 1 contract
Samples: Common Stock Purchase Agreement
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to All claims for indemnification made under this Article VIAgreement resulting from, the Parent related to or the Company Stockholders arising out of a third-party claim against an Indemnified Party (as the case may beother than a claim for Taxes, which shall be governed by Section 5.9(e)) shall give written notification be made in accordance with the following procedures. An Indemnified Party shall promptly deliver an Expected Claim Notice to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any action, suit or proceeding relating to a third third-party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt sought or, if earlier, upon the assertion of any such claim by the party seeking indemnification of notice of such suit or proceedinga third party, and if the Indemnified Party is a Buyer Indemnified Party, the Buyer shall describe in reasonable detail (deliver a copy of the Expected Claim Notice to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no Escrow Agent. No reasonable delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party any Indemnifying Party shall relieve the indemnifying party of Indemnifying Party from any liability or obligation hereunder except unless (and then solely to the extent of any damage or liability caused by or arising out of such failureextent) the Indemnifying Party is thereby prejudiced. Within 20 calendar days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit action, suit, proceeding or proceeding with counsel claim if (a) the Indemnifying Party accepts full responsibility for the matter, (b) the Indemnifying Party reasonably satisfactory demonstrates it has the financial resources necessary to defend against the party seeking indemnification; provided that matter and fulfill its indemnification obligations and (c) the indemnifying party may not assume control of Indemnifying Party conducts the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationwith reasonable diligence. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that PROVIDED, THAT, if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes concludes, based on advice from counsel, that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit action, suit, proceeding or proceedingclaim, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party solely in connection therewith shall be considered “"Damages” " for purposes of this Agreement; PROVIDED, HOWEVER, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The party Party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling other Party advised of the status of such suit action, suit, proceeding or proceeding claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling other Party with respect thereto. The Non-Controlling Indemnified Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement ofof such action, suit, proceeding or claim, or the entry of admit any judgment arising fromLiability with respect thereto, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnifying Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnifying Party shall not agree to any settlement ofof such action, suit, proceeding or claim that does not include a complete release of the entry of Indemnified Party from all Liability with respect thereto or that imposes any judgment arising from, any such suit or proceeding Liability on the Indemnified Party without the prior written consent of the indemnifying partyIndemnified Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent Pubco or the Company Stockholders Raditaz Members are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent Pubco or the Company Stockholders Raditaz Members (as the case may be) shall give written notification to the Company Stockholders Indemnifying Members or the Parent Pubco (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third A party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Indemnified Party”) may participate therein at its own expense; provided that if entitled to indemnification from another party under the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes terms of this Agreement. The party controlling such defense Agreement (the “Controlling Indemnifying Party”) shall keep provide the Non-Controlling Indemnifying Party advised with prompt written notice (an “Indemnity Notice”) of any third party claim which the status Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. Notwithstanding the foregoing, [***]=[CONFIDENTIAL PORTION HAS BEEN OMITTED BECAUSE IT (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED] the failure of such suit or proceeding and the defense thereof and an Indemnified Party to promptly provide an Indemnity Notice shall consider in good faith recommendations made not constitute a waiver by the Non-Controlling Indemnified Party with respect theretoto any right to indemnification or otherwise relieve such Indemnifying Party from any liability hereunder unless and only to the extent that the Indemnifying Party is prejudiced as a result thereof. The Non-Controlling Indemnifying Party shall furnish be entitled, if it accepts financial responsibility for the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such third party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in to control the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, settle any such suit or proceeding third party claim at its own expense and by its own counsel; provided that unless a settlement includes an unconditional release of an Indemnified Party no settlement by the Indemnifying Party of such a claim will be binding on such Indemnified Party for purposes of the indemnification provisions hereof without the prior written consent of the party seeking indemnificationsuch Indemnified Party to such settlement, which shall consent may not be unreasonably withheld withheld, conditioned or delayed; provided that . The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Section 7.03, no settlement or other compromise or consent to a judgment by the Indemnified Party with respect to a third party claim as to which the Indemnifying Party is asserted to have an indemnity obligation hereunder will be binding on the Indemnifying Party for purposes of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding provisions hereof without the prior written consent of such Indemnifying Party to such settlement. Any Indemnifying Party shall be subrogated to the indemnifying partyrights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, which shall damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be unreasonably withheld or delayedwaive any of its rights hereunder to later seek reimbursement from the Indemnifying Party.
Appears in 1 contract
Samples: Capacity Purchase Agreement (Harbor Diversified, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders Merger Agreement (as the case may bean "INDEMNIFIED PARTY") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "INDEMNIFYING PARTY") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to the Merger Agreement, and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under the Merger Agreement and the indemnification provisions contained herein, and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in 84 which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non"NON-Controlling Party”CONTROLLING PARTY") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent Purchaser or the Company Stockholders Members are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent Purchaser or the Company Stockholders Member (as the case may be) shall give written notification to the Company Stockholders Members or the Parent Purchaser (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third third-party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non-Controlling "Non- controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days twenty (20) days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 twenty (20) days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bio Imaging Technologies Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any Damages that may be assessed against the Indemnified Party in connection with such Third Party Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the amount of damages claimed is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit Third Party Action. Notwithstanding any other provision of this Agreement, the reasonable fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 7.3(a) or proceeding(ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that . If the Indemnified Party withholds its consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or entry of judgment and such which settlement or entry of judgment includes a complete release relates to cash Damages only, then the liability of the party seeking indemnification from further liability and has no other materially adverse effect on Indemnifying Party to the party seeking indemnificationIndemnified Party with respect to the matter which would have been concluded or settled shall be limited to the amount for which such matters could have been concluded or settled but for the fact the Indemnified Party withheld its consent. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of – 40 – any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Energy Solutions, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VIII (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI VIII may be sought. Such notification shall be given within 20 Business Days twenty (20) business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VIII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VIII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding proceeding, or any portion of a suit or proceeding, involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Contribution (Engage Technologies Inc)
Indemnification Claims. If (a) In the event the Parent or the Company Stockholders are entitleda claim is brought by a Third Party alleging patent infringement by DARA, its Affiliates, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification their Sublicensees with respect to the Company Stockholders development, manufacture, use, sale, offer for sale or importation of Products, (b) a civil action is brought by a Third Party arising out of or relating to the Parent (as the case may be) practice of the commencement Licensed Patents, or (c) any Third Party challenges the validity of any suit or proceeding claims of any Licensed Patent, each Party will give prompt written notice to the other Party of such claim (collectively, an “Indemnification Claim”). DARA will, at its sole cost and expense, (i) defend such Indemnification Claim, (ii) assume all costs, expenses, damages and other obligations for payments incurred in connection with such Indemnification Claim, and (iii) indemnify and hold harmless Nuada and its managers, members, Affiliates, successors and assigns from and against any and all damages, losses, liabilities and costs relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failureIndemnification Claim. Within 20 days after delivery DARA shall be free to enter into a settlement, consent judgment, or other voluntary disposition of such notificationIndemnification Claim, the indemnifying party mayprovided that any settlement, upon written notice thereof to the party seeking indemnification, assume control of the defense consent judgment or other voluntary disposition of such suit or proceeding with counsel reasonably satisfactory Indemnification shall (x) contain a full and unconditional release of Nuada and its managers, members, Affiliates, successors and assigns, (y) not subject Nuada to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal any liability or obligation and (z) not admit fault or wrongdoing on the part of Nuada. Nuada agrees to cooperate with DARA, at DARA’s expense, in which equitable relief is sought against the party seeking indemnificationany reasonable manner deemed by DARA to be necessary in defending any such Indemnification Claim. If the indemnifying party does not so assume control DARA shall reimburse Nuada for any reasonable out of pocket expenses incurred in providing such defense, the party seeking indemnification shall control such defenseassistance. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests Any recovery or different defenses available damages received by DARA in any action or settlement under this Section 6.2.1 with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification rights licensed under this Agreement shall be considered “Damages” used first to reimburse the Parties for purposes of this Agreement. The party controlling unreimbursed reasonable, documented expenses incurred in connection with such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding action, and the defense thereof and remainder shall consider be deemed Net Sales subject to royalties under Section 4.3. Notwithstanding the foregoing, either Party, at its expense, shall have the right to be represented by counsel of its choice in good faith recommendations made any such proceeding controlled by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedParty.
Appears in 1 contract
Samples: Exclusive License Agreement (DARA BioSciences, Inc.)
Indemnification Claims. (a) In Where the event the Parent or the Company Stockholders are Buyer is entitled, or seek seeking to assert rights, to indemnification under this Article VI, VI (the Parent or the Company Stockholders (as the case may be"Indemnified Party") it shall give written notification to the Company Stockholders or (the Parent (as the case may be"Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Non- controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving primarily criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationliability. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification (a "Notification of Suit") to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification Notification of Suit shall be given within 20 Business Days 30 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notificationNotification of Suit, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding if, but only if, the Indemnifying Parties acknowledge in writing their obligation to indemnify the Indemnified Parties hereunder against any Damages that such Indemnified Parties incur or have incurred in connection with counsel reasonably satisfactory to the such third party seeking indemnificationclaim; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. A party entitled to indemnification (athe “Indemnified Party”) In from another party under the event terms of this Agreement (the Parent or “ Indemnifying Party”) shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an “ Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party's prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.03, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 1 contract
Samples: Airline Services Agreement (Frontier Airlines Holdings, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek An Indemnified Party seeking to assert rights, rights to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) VI shall give written notification to the Company Stockholders or the Parent (as the case may be) Stockholder Representatives of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such action, suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such action, suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Stockholder Representatives shall relieve the indemnifying party Indemnifying Parties of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Stockholder Representatives may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; Indemnified Party, provided the Stockholder Representatives acknowledge in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the indemnifying party may not assume control of the defense of a Indemnified Party in connection with such action, suit or proceeding involving criminal liability or constitute Damages for which the Indemnified Party shall, subject to the limitations set forth in which equitable relief is sought against the party seeking indemnificationSection 6.4, be indemnified pursuant to this Article VI. If the indemnifying party does Stockholder Representatives do not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “"Non-Controlling Party”") may participate therein at its their own expense; provided that if the indemnifying party assumes Stockholder Representatives assume control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Parties and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of one counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for 41 purposes of this Agreement. The party Party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling Party reasonably advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such action, suit or proceeding (including copies of any summons, complaint or other pleading pleadings which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such action, suit or proceedingproceeding and provide the Controlling Party and its counsel access to (and the right to make copies of) the Surviving Corporation's books and records pertaining to such matter. The indemnifying party Stockholder Representatives shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the indemnifying partyStockholder Representatives, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that if the Stockholder Representatives do not assume the defense of such action, suit or proceeding pursuant to this Section 6.2(a), the Indemnified Party shall be entitled to agree to a settlement of, or the entry of any judgment arising from, such action, suit or proceeding, after giving notice of the same to the Stockholder Representatives, on such terms as the Indemnified Party in good faith may deem appropriate.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days promptly after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no . No delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any material prejudice, damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI, and (B) the ad damnum in such Third Party Action, 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 then current balance of the Escrow Fund and (ii) the Indemnifying Party may not assume control of the defense of a suit Third Party Action involving Taxes or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have possesses with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (I) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (II) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Except as provided in Section 6.3(f) below, the Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rsa Security Inc/De/)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) The Buyer shall give written notification to the Company Stockholders or the Parent (as the case may be) Seller of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Buyer of notice of such suit or proceeding, Third Party Action and shall describe in reasonable detail (to the extent known by the party seeking indemnificationBuyer) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Buyer in so notifying the indemnifying party Seller shall relieve the indemnifying party Seller of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Seller may, upon written notice thereof to the party seeking indemnificationBuyer, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationBuyer; provided that (i) the indemnifying party Seller may only assume control of such defense if (A) he acknowledges in writing to the Buyer that any damages, fines, costs or other liabilities that may be assessed against the Company, Buyer or Parent in connection with such Third Party Action constitute Damages for which the Buyer or Parent shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Seller is liable under this Article VI; and (ii) the Seller may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationCompany, Buyer or Parent. If the indemnifying party Seller does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Buyer or Parent shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Company, Buyer and Parent with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Buyer or Parent controls the defense of such Third Party Action pursuant to the terms of this Section 6.2(a) or (ii) the Seller assumes control of such defense and the Buyer reasonably concludes that the Seller and the Company, the Buyer or Parent have conflicting interests or different defenses available with respect to such Third Party Action. The Seller shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationBuyer and Parent, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Buyer and Parent shall not be required if the indemnifying party Seller agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Buyer and Parent from further liability and has no other materially adverse effect on the party seeking indemnificationBuyer or Parent. The party seeking indemnification Buyer shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partySeller, which shall not be unreasonably withheld withheld, conditioned or delayed.;
Appears in 1 contract
Samples: Agreement and Plan of Merger (Neutron Enterprises Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VII and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VII and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent Indemnifying Party (as the case may bea "CLAIM NOTICE") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI 7 may be soughtsought (each a "THIRD PARTY CLAIM"). Such notification Claim Notice shall be given within 20 Business Days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Claim, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Claim and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days Business Days after delivery of such notificationClaim Notice, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Claim with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of any Legal Proceeding involving a suit or proceeding involving Third Party Claim for criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non"NON-Controlling Party”CONTROLLING PARTY") may participate therein in, but not control, the defense at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceedingThird Party Claim, the reasonable fees and expenses of one counsel to incurred by the party seeking indemnification Indemnified Party as a result of protecting or preserving such conflicting interests or different defenses shall be considered “Damages” Damages for purposes of this Agreement. The party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Claim. The indemnifying party Controlling Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided provided, however, that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay Indemnified Party may reject any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of where the party seeking indemnification from further liability and has no relief sought is other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedthan money Damages.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Caliper Life Sciences Inc)
Indemnification Claims. (a) In the event the Parent Purchaser or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent Purchaser or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent Purchaser (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party as reasonably needed in the defense of such suit or proceedingproceeding at the sole cost and expense of the indemnifying party under Section 6.1 or 6.2, which cost and expense shall be considered “Damages” for purposes of this Agreement. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.seeking
Appears in 1 contract
Samples: Stock Purchase Agreement (Ds Healthcare Group, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which that may have been served on such party Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Brooks Automation Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent Indemnifying Party (as the case may bea “Claim Notice”) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI 8 may be soughtsought (each a “Third Party Claim”). Such notification Claim Notice shall be given within 20 twenty (20) Business Days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Claim, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Claim and the amount of the claimed damages; provided, however, provided that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days twenty (20) Business Days after delivery of such notificationClaim Notice, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Claim with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of any Legal Proceeding involving a suit or proceeding involving Third Party Claim for criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall 37 control such defense. The party Party not controlling such defense (the “Non-Controlling Party”) may participate therein in, but not control, the defense at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceedingThird Party Claim, the reasonable fees and expenses of one counsel to incurred by the party seeking indemnification Indemnified Party as a result of protecting or preserving such conflicting interests or different defenses shall be considered “Damages” Damages for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Claim. The indemnifying party Controlling Party shall not agree to any settlement of, or the entry of any judgment Judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay Indemnified Party may reject any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of where the party seeking indemnification from further liability and has no relief sought is other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedthan money Damages.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Princeton Review Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint complaint, or other pleading which may have been served on such party and any written claim, demand, invoice, billing billing, or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders IX (as the case may bean “Indemnified Party”) shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean “Indemnifying Party”) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI IX may be sought. Such notification shall be given within 20 Business Days 30 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume The Indemnified Party shall control of the defense of such suit or proceeding with counsel reasonably satisfactory to and the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) Indemnifying Party may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the . The reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Indemnified Party shall keep the Non-Controlling Indemnifying Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Indemnifying Party with respect thereto. The Non-Controlling Indemnifying Party shall furnish the Controlling Indemnified Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Indemnified Party in the defense of such suit or proceeding. The indemnifying party Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days 25 days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to $50 million and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party Non-controlling Party may participate in, but not controlling determine or conduct, such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise fully cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed, provided, however, that such consent of the Indemnified Party shall not be required if (i) such settlement or judgment includes a complete release of the Indemnified Party from further liability and (ii) such settlement or judgment does not include any admission of liability on the part of the Indemnified Party (other than solely in respect of monetary payments, provided any such payments are paid by the Indemnifying Party) or impose any equitable relief upon the Indemnified Party. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days twenty (20) days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 twenty (20) days after delivery of such notification, the indemnifying party Indemnifying Party may, upon pursuant to its written notice thereof Response to the party seeking indemnificationIndemnified Party, either deny liability for the Third Party Action, specifying in reasonable detail the basis for such denial, or assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability liability, to which any Governmental Entity is a party or in which equitable or other non-monetary relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defensedefense with counsel reasonably satisfactory to the Indemnifying Party (it being agreed that, if the Buyer is the Indemnified Party, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP is hereby deemed reasonably satisfactory for such purposes). The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling Non- controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available to the Indemnified Party with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, unless such settlement (A) is a monetary settlement payable in its entirety by the Indemnifying Party, (B) includes an unconditional release of the Indemnified Party and its officers, directors, managers, employees and Affiliates from all liability arising out of such Third Party Action, (C) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party or any of its Affiliates and (D) does not impose any equitable or other non-monetary relief on the Indemnified Party or any of its Affiliates or otherwise affect, restrain or interfere with the business or operations of the Indemnified Party or any of its Affiliates. Subject to Section 6.3(f), the Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders IV (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI IV may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article IV and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article IV and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bottomline Technologies Inc /De/)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that the indemnifying party Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling Non- controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders II (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI II may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within Promptly, and in any event within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if it acknowledges in writing to the Indemnified Party that any Damages that may be assessed against the Indemnified Party in connection with such suit or proceeding shall be indemnified pursuant to this Article II and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders Stockholder Representative Committee of either (i) the receipt of a written notice or a written demand that the Parent Buyer determines, in its reasonable discretion, is reasonably likely to result in a claim for which indemnification pursuant to this Article VI may be brought or (as the case may beii) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtsought (each a “Third Party Claim”). Such notification shall be given within 20 Business Days 10 business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Claim, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Claim and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Stockholder Representative Committee shall relieve the indemnifying party Accredited Stockholders of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Stockholder Representative Committee, on behalf of the Accredited Stockholders, may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Claim with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Stockholder Representative Committee may only assume control of such defense if it acknowledges in writing to the Indemnified Party that any Damages that may be assessed against the Indemnified Party in connection with such Third Party Claim constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (ii) the Stockholder Representative Committee may not assume control of the defense of any Legal Proceeding involving a suit or proceeding involving Third Party Claim for criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Stockholder Representative Committee does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non-Controlling controlling Party”) may participate therein at its own expense; provided that if the indemnifying party Stockholder Representative Committee assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Stockholders and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceedingThird Party Claim, the reasonable fees and expenses of counsel to incurred by the party seeking indemnification Indemnified Party as a result of protecting or preserving such conflicting interests or different defenses shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Claim. The indemnifying party Stockholder Representative Committee, on behalf of the Stockholders, shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided provided, however, that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay Indemnified Party may reject any amounts payable pursuant to such settlement or judgment and if the amount of such settlement or judgment includes a complete release is greater than the sum of (i) the Value of the party seeking Escrowed Shares then in escrow under the Escrow Agreement plus (ii) the amount of all then outstanding claims for indemnification from further liability and has no other materially adverse effect on the party seeking indemnificationunder this Article VI. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Viisage Technology Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days the earlier of (i) the Claims Deadline (as defined below) or (ii) twenty (20) business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Student Advantage Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Tyme Technologies, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Neurotrope, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) Purchaser shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement Seller of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Claim. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Purchaser of notice of such suit or proceedingThird Party Claim, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationPurchaser) the facts constituting the basis for such suit or proceeding Third Party Claim and the amount of the claimed damagesLosses; provided, however, that no delay or failure on the part of the party seeking indemnification Purchaser in so notifying the indemnifying party Seller shall relieve the indemnifying party Seller of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Seller may, upon written notice thereof to the party seeking indemnificationPurchaser, assume control of the defense of such suit or proceeding Third Party Claim with counsel reasonably satisfactory to the party seeking indemnificationPurchaser; provided that Seller may only assume control of such defense if it acknowledges in writing to Purchaser that any damages, fines, costs or other liabilities that may be assessed against Purchaser in connection with such Third Party Claim constitute Losses for which Purchaser shall be indemnified pursuant to this Article VIII. If Seller does not, or is not permitted under the indemnifying party may not terms hereof to, so assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defenseThird Party Claim, the party seeking indemnification Purchaser shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Claim (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Claim. The indemnifying party fees and expenses of counsel to Purchaser with respect to a Third Party Claim shall be considered Losses for purposes of this Agreement only if Purchaser controls the defense of such Third Party Claim pursuant to the terms of this Section 8.2(a). Seller shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the party seeking indemnificationPurchaser, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Purchaser shall not be required if the indemnifying party Seller agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Purchaser from further liability and has no other materially adverse effect on the party seeking indemnificationwith respect thereto. The party seeking indemnification Purchaser shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Claim without the prior written consent of the indemnifying partySeller, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. A party (athe "Indemnified Party") In entitled to indemnification from another party under the event terms of this Agreement (the Parent or "Indemnifying Party") shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an "Indemnity Notice") of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under this Article VIcontrol the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party's prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Parent Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim. The Indemnified Party shall provide the Company Stockholders (Indemnifying Party with such information as the case may be) Indemnifying Party shall give written notification reasonably request to defend any such third party claim and shall otherwise cooperate with the Company Stockholders or Indemnifying Party in the Parent (as the case may be) of the commencement defense of any suit such third party claim. Except as set forth in this Section 7.03, the Indemnified Party shall not enter into any settlement or proceeding relating other compromise or consent to a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the consent of Indemnifying Party pays for any loss, damage or expense suffered by the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnified Party hereunder.
Appears in 1 contract
Samples: Capacity Purchase Agreement (Continental Airlines Inc /De/)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of the notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no . No delay or failure on the part of the party seeking indemnification an Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage damage, prejudice or liability caused by or arising out of such delay or failure. Within 20 30 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VIII, (B) in the case where the Indemnified Party is the Buyer, the ad damnum in such Third Party Action, 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 current balance, without duplication, of the Escrow Fund, the Holdback Funds (if any) and the Adjusted Guaranteed Amount, taken together, and (C) in the case where the Indemnified Party is the Buyer, an adverse resolution of the Third Party Action would not have a material adverse effect on the goodwill or reputation of the Buyer and its Subsidiaries, taken as a whole, or the business, operations or future conduct of the Buyer and its Subsidiaries, taken as a whole, and (ii) the Indemnifying Party may not assume control of the defense of a suit any Third Party Action involving any Governmental Entity (other than any such Third Party Action involving Taxes) or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationsought. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action that is ultimately determined to be indemnifiable pursuant to this Article VIII shall be considered Damages for purposes of this Agreement if (x) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 8.3(a) or (y) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay, and does in fact pay (or, if applicable, permit the Buyer to offset from any amounts then due and payable under this Agreement) any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no would not have any other materially adverse effect on the party seeking indemnificationIndemnified Party and/or result in any injunctive relief against the Indemnified Party. The party seeking indemnification Except as provided in Section 8.3(e), the Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed. Notwithstanding anything else herein to the contrary, to the extent there is any conflict between the provisions of this Section 8.3(a) and Section 9.3(c) with regard to any Third Party Action involving Taxes, Section 9.3(c) shall govern.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, Any person entitled to indemnification under this Article VI, the Parent or the Company Stockholders hereunder shall (as the case may bei) shall give prompt written notification notice to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person's right to indemnification hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding claim with counsel reasonably satisfactory to the party seeking indemnification; provided that indemnified party. If such defense is assumed, the indemnifying party may shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume control of the defense of a suit or proceeding involving criminal liability or claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in which equitable relief is sought against the reasonable judgment of any indemnified party seeking indemnificationa conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. If An indemnified party shall be able to assume the defense (at the cost of the indemnifying party) if the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in diligently pursue the defense of such suit or proceedingthe indemnified party. The In addition, no indemnifying party shall not agree consent to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that a settlement except with the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying indemnified party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Student Advantage Inc)
Indemnification Claims. (a) In An Indemnified Party shall deliver a Claim Notice to the event Indemnifying Party within a reasonable period of time after becoming aware of any Damages that the Parent Indemnified Party has paid, sustained, incurred or the Company Stockholders are entitledaccrued, or seek reasonably anticipates it will have to assert rightspay, sustain, incur or accrue, which the Indemnified Party shall have determined has given or could give rise to a claim for indemnification under this Article VISection 6.1 or 6.2 hereof, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtapplicable. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, It is agreed that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party shall any Indemnifying Party of a claim will relieve the indemnifying party Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the estimated amount of any liability Damages described in such Claim Notice, or obligation hereunder except fails to notify the extent of any damage or liability caused by or arising out of such failure. Within Indemnified Party within 20 days after delivery of such notificationClaim Notice by the Indemnified Party whether the Indemnifying Party disputes the claim or the estimated amount of Damages described in such notice, the indemnifying party may, upon written estimated Damages in the amount specified in the Indemnified Party’s notice thereof will be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Damages to the party seeking indemnificationIndemnified Party. In case the Indemnifying Party delivers a written Dispute, assume control the Indemnified Party and the Indemnifying Party shall attempt in good faith to agree upon the rights of the defense respective parties with respect to each of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationClaim Notice. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense Indemnified Party and the party seeking indemnification reasonably concludes that the indemnifying party Indemnifying Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and the party seeking indemnification have conflicting interests or different defenses available with respect to Indemnifying Party shall pay the amount set forth in such suit or proceeding, the reasonable fees and expenses of counsel memorandum to the party seeking indemnification shall be considered “Damages” for purposes of this AgreementIndemnified Party. The party controlling If the Indemnifying Party and Indemnifying Party are unable to resolve such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised Dispute within 30 days after delivery of the status notice of such suit or proceeding Dispute, then the Indemnifying Party and the defense thereof and shall consider Indemnified Party will submit the Dispute to arbitration in good faith recommendations made by the Non-Controlling Party accordance with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedSection 6.3.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of that any suit or proceeding relating to a third indemnified party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Indemnified Party”) becomes aware of any claim or demand for which an indemnifying party (an “Indemnifying Party”) may participate therein at its own expense; provided that if have liability to such Indemnified Party hereunder (an “Indemnification Claim”), such Indemnified Party shall, prior to the indemnifying party assumes control expiration of any applicable survival period set forth in this agreement, notify the Indemnifying Party in writing of such defense Indemnification Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Indemnification Claim), and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”). Notwithstanding anything to the contrary in this Agreement, each Indemnified Party’s right to institute any legal action or proceeding against any Indemnifying Party with respect to an Indemnification Claim (each, a “Legal Action”) shall be expressly conditioned upon: (a) such Indemnified Party having delivered a Claim Notice to such Indemnifying Party within the Survival Period (the “Notice Date”), and (b) such Indemnified Party having commenced such Legal Action (by appropriate filing with a court of competent jurisdiction) prior to the party seeking indemnification reasonably concludes date which is 2 years and 1 day following the Closing Date. Each of Buyer (for itself and on behalf of the Buyer-Related Entities) and Seller (for itself and on behalf of the Seller-Related Entities) hereby acknowledges and agrees that any Indemnification Claim, and any Legal Action that may be brought pursuant to such Indemnification Claim, for which an Indemnified Party fails to satisfy the indemnifying party foregoing conditions precedent shall be deemed to have been waived, and the party seeking indemnification such Indemnified Party shall be deemed to have conflicting interests or different defenses available released such Indemnifying Party from any all liability with respect to such suit Indemnification Claim. In the event that the foregoing limitation on the period for bringing a Legal Action is held to be in violation of applicable Texas law, or proceedingis otherwise held to be invalid or unenforceable, the reasonable fees and expenses of counsel then, to the party seeking indemnification maximum extent permitted by applicable law, such deadline shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (automatically deemed extended to the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding earliest date permitted under applicable law, and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that extended to align with the consent of statutory limitations period applicable to the party seeking indemnification shall not be required if the indemnifying party agrees claim in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedquestion.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Ryman Hospitality Properties, Inc.)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days twenty (20) business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failuredelay. Within 20 twenty (20) days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability liability, a suit or proceeding involving Taxes (other than, at the election of Devix X. Xxxxxx, x suit or proceeding involving sales Taxes that is commenced prior to the second anniversary of the Closing Date) or a suit or proceeding in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.other
Appears in 1 contract
Samples: Agreement and Plan of Merger (Student Advantage Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving Taxes, criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action; provided that for the purposes of clause (i), the Indemnified Party shall only be entitled to fees and expenses of counsel only if the indemnification claim by the Indemnified Party relating to such Third Party Action is a valid claim. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders Indemnifying Party of (i) any claim or demand, which the Parent Indemnified Party has determined has given rise to a right of indemnification under this Agreement or (as the case may beii) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after the Indemnified Party shall become aware of such claim or demand giving right to indemnification under this Agreement or, in the case of a Third Party Action, receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 30 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnification; provided that Indemnified Party. If the indemnifying party may Indemnifying Party does not so assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defenseThird Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party Party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent then known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no Damages. No delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such delay or failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (including, without limitation, any assumption of control pursuant to Section 1.6(b) hereof), (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI (subject to the limitations set forth herein), and (B) if the Indemnifying Stockholders are the Indemnifying Party, the ad damnum in such Third Party Action, 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 the maximum amount for which the Indemnifying Stockholders are then liable on account of such Third Party Action under Section 6.5 below, (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding Third Party Action involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party and (iii) control of Third Party Actions relating to Tax Contests shall be determined pursuant to Section 6.9 and not this Section 6.3(a). If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party reasonably advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (I) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (II) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationliability. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "INDEMNIFIED PARTY") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "INDEMNIFYING PARTY") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided PROVIDED THAT (i) the Indemnifying Party may only assume control of such defense if (A) it acknowledges in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the indemnifying party Indemnified Party in connection with such suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “Non"NON-Controlling Party”CONTROLLING PARTY") may participate therein at its own expense; provided that PROVIDED THAT if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “Damages” "DAMAGES" for purposes of this Agreement. The party controlling such defense (the “Controlling Party”"CONTROLLING PARTY") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Silverstream Software Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or legal proceeding relating to a third party claim for which indemnification against such Indemnified Party that such Indemnified Party reasonably believes will result in an Indemnifiable Loss pursuant to this Article VI may be sought9 (a “Third Party Action”). Such notification shall be given within 20 Business Days days after receipt by the party seeking indemnification Indemnified Party (which, in the case of Company Stockholders, shall mean the Stockholder Representative) of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no a delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall not relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery In the event Parent or any of such notificationits Affiliates is the Indemnified Party, Parent shall have the right to conduct and control, through counsel of its choosing, the indemnifying party maydefense, upon written notice thereof compromise or settlement of any Third Party Action, as to the party seeking indemnification, assume which indemnification will be sought by Parent hereunder. The Indemnifying Party shall not be entitled to control of the defense of such suit or proceeding with counsel reasonably satisfactory any Third Party Action, unless the Indemnifying Party (i) admits its liability for indemnification hereunder and (ii) demonstrates its ability to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking pay its indemnification shall control such defenseobligation. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Indemnifiable Losses for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 9.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld withheld, conditioned or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rxi Pharmaceuticals Corp)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to All claims for indemnification made under this Article VIAgreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the Parent or the Company Stockholders (as the case may be) following procedures. An Indemnified Party shall give prompt written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any action, suit or proceeding proceeding, including any government inquiry, relating to a third third-party claim for which indemnification pursuant to this Article VI may be soughtsought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe include a description in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) of the facts constituting the basis for such suit or proceeding third-party claim and the amount of the claimed damages; provided, however, that no Damages claimed. No delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party any Indemnifying Party shall relieve the indemnifying party of Indemnifying Party from any liability or obligation hereunder except unless (and then solely to the extent of any damage or liability caused by or arising out of such failureextent) the Indemnifying Party is thereby prejudiced. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit action, suit, proceeding or proceeding claim with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes concludes, based on advice from counsel, that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit action, suit, proceeding or proceedingclaim, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party solely in connection therewith shall be considered “Damages” for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one counsel for all Indemnified Parties. The party Party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling other Party advised of the status of such suit action, suit, proceeding or proceeding claim and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling other Party with respect thereto. The Non-Controlling Indemnified Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement ofof such action, suit, proceeding or the entry of any judgment arising from, any such suit or proceeding claim without the prior written consent of the party seeking indemnificationIndemnifying Party, which consent shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnifying Party shall not agree to any settlement ofof such action, suit, proceeding or claim that does not include a complete release of the entry of Indemnified Party from all liability with respect thereto or that imposes any judgment arising from, any such suit liability or proceeding obligation or potential liability or obligation on the Indemnified Party without the prior written consent of the indemnifying partyIndemnified Party, which consent shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage Damage or liability caused by or arising out of such failure. Within 20 business days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of one counsel to the party seeking indemnification Indemnified Party with respect to such matters of conflict shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which consent shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability with respect to the claim and has no other materially adverse effect on the party seeking indemnificationIndemnified Party of a financial nature or with respect to Intellectual Property. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, shall be accompanied by reasonable supporting documentation submitted by such third party (to the extent then in the possession of the Indemnified Party) and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay or deficiency on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided PROVIDED, HOWEVER, that (i) the indemnifying party Indemnifying Party may only assume control of such defense if 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI, and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable any relief other than monetary damages is - 55 - 61 sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided PROVIDED, HOWEVER, that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided PROVIDED, HOWEVER, that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) The indemnified party shall give written notification to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying provide the indemnifying party notice of any such claims of liability with reasonable promptness and the indemnifying party, at its election, shall relieve have the right of defense in such proceedings, by counsel of its own choosing, at the indemnifying party's expense. The indemnified party shall cooperate fully in all respects with the indemnifying party of in any liability or obligation hereunder except such defense, including, without limitation, by making available to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to all pertinent information under G:\USER\LSF\02988.034\NUEVOSOL V4.wpd 9/22/2000 the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationindemnified party. If the indemnifying party does not so assume control notify the indemnified party within ten (10) days of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if indemnified party's notice to the indemnifying party assumes control of a potential claim that the indemnifying party will defend the same, or should the indemnifying party fail to file any answer or other pleading at least five (5) days before the same is due, then the indemnified party may defend or settle such defense claim or action at the indemnifying party's sole cost and expense in such manner as the indemnified party seeking indemnification reasonably concludes deems appropriate, in its sole discretion. If the indemnifying party does timely notify the indemnified party of the indemnifying party's election to defend, then the indemnifying party may defend, but not settle, a claim without waiving its right to assert that such claim is not subject to the indemnity agreements in this Section 15. If the indemnifying party elects to defend a claim, the indemnified party may, at the indemnified party's expense, participate in such matter with counsel of the indemnified party's own choosing; provided, however, if the named parties to such proceeding include both the indemnifying party and the indemnified party seeking indemnification have and representation of the indemnifying party and the indemnified party by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential conflicting interests or different defenses available with respect to such suit or proceedinginterest between them, then the reasonable fees and expenses of the indemnified party's counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made paid by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) An Indemnified Party shall give written notification to the Company Stockholders or the Parent (as the case may be) Indemnifying Party of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be soughtThird Party Action. Such notification shall be given within 20 Business Days twenty (20) days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceedingThird Party Action, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding Third Party Action and the amount of the claimed damages; provided, however, that no delay or failure on the part of the party seeking indemnification Indemnified Party in so notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any material damage or liability caused by or arising out of such failure. Within 20 twenty (20) days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding Third Party Action with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided provided, that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 Action constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the ad damnum is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of any Third Party Action (A) asserted directly by or on behalf of a suit Person that is a supplier or proceeding customer of the Acquired Companies, (B) involving criminal liability or liability, (C) in which equitable relief is sought against the party seeking indemnificationIndemnified Party or (D) that gives rise to a conflict of interest between the Indemnifying Party and the Indemnified Party which cannot be waived. If the indemnifying party Indemnifying Party does not, or is not permitted under the terms hereof to, so assume control of such defensethe defense of a Third Party Action, the party seeking indemnification Indemnified Party shall control such defense. The party not Non-controlling Party may participate in such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel expense (subject to the party seeking indemnification shall be considered “Damages” for purposes provisions of this AgreementSection 6.3(a)). The party controlling such defense (the “Controlling Party”) Party shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding Third Party Action and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall use commercially reasonable efforts to furnish the Controlling Party with such information as it may have with respect to such suit or proceeding Third Party Action (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise reasonably cooperate with and assist the Controlling Party in the defense of such suit or proceedingThird Party Action. The indemnifying party fees and expenses of counsel to the Indemnified Party with respect to a Third Party Action shall be considered Damages for purposes of this Agreement if (i) the Indemnified Party controls the defense of such Third Party Action pursuant to the terms of this Section 6.3(a) or (ii) the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party have conflicting interests or different defenses available with respect to such Third Party Action. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any Third Party Action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding Third Party Action without the prior written consent of the party seeking indemnificationIndemnifying Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement ofwithheld, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld conditioned or delayed.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Superconductor Corp /De/)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this Article VI and (B) the AD DAMNUM is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this Article VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification Indemnified Party shall not be required if the indemnifying party Indemnifying Party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification Indemnified Party from further liability and has no other materially adverse effect on the party seeking indemnificationIndemnified Party. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Exe Technologies Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are THIRD PARTY SUIT OR PROCEEDING. A party entitled, or seek seeking to assert rights, to indemnification under this Article VI, the Parent or the Company Stockholders ARTICLE VI (as the case may bean "Indemnified Party") shall give written notification to the Company Stockholders or the Parent party from whom indemnification is sought (as the case may bean "Indemnifying Party") of the commencement of any suit or proceeding relating to a third party claim for which indemnification pursuant to this Article ARTICLE VI may be sought. Such notification shall be given within 20 Business Days twenty (20) business days after receipt by the party seeking indemnification Indemnified Party of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; providedPROVIDED, howeverHOWEVER, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Indemnifying Party shall relieve the indemnifying party Indemnifying Party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 twenty (20) calendar days after delivery of such notification, the indemnifying party Indemnifying Party may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnificationIndemnified Party; provided PROVIDED that (i) the indemnifying party Indemnifying Party may only assume control of such defense if (A) 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 suit or proceeding constitute Damages for which the Indemnified Party shall be indemnified pursuant to this ARTICLE VI and (B) the AD DAMNUM is less than or equal to the amount of Damages for which the Indemnifying Party is liable under this ARTICLE VI and (ii) the Indemnifying Party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnificationIndemnified Party. If the indemnifying party Indemnifying Party does not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party not controlling such defense (the “"Non-Controlling controlling Party”") may participate therein at its own expense; provided PROVIDED that if the indemnifying party Indemnifying Party assumes control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Party and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling controlling Party with respect thereto. The Non-Controlling controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which that may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which that shall not be unreasonably withheld or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying partyIndemnifying Party, which shall not be unreasonably withheld or delayed.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Purchasepro Com Inc)
Indemnification Claims. A party entitled to indemnification (athe “Indemnified Party”) In from another party under the event terms of this Agreement (the Parent or “Indemnifying Party”) shall provide the Company Stockholders are Indemnifying Party with prompt written notice (an “Indemnity Notice”) of any third party claim which the Indemnified Party believes gives rise to a claim for indemnity against the Indemnifying Party hereunder. The Indemnifying Party shall be entitled, or seek to assert rightsif it accepts financial responsibility for the third party claim, to indemnification under control the defense of or to settle any such third party claim at its own expense and by its own counsel; provided that the Indemnified Party's prior written consent (which may not be unreasonably withheld or delayed) must be obtained prior to settling any such third party claim. The Indemnified Party shall provide the Indemnifying Party with such information as the Indemnifying Party shall reasonably request to defend any such third party claim and shall otherwise cooperate with the Indemnifying Party in the defense of any such third party claim. Except as set forth in this Article VISection 7.03, the Parent Indemnified Party shall not enter into any settlement or the Company Stockholders (as the case may be) shall give written notification other compromise or consent to the Company Stockholders or the Parent (as the case may be) of the commencement of any suit or proceeding relating a judgment with respect to a third party claim for as to which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days after receipt by the party seeking indemnification of notice of such suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnification) the facts constituting the basis for such suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification in notifying the indemnifying party shall relieve the indemnifying party of any liability or Indemnifying Party has an indemnity obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party may, upon written notice thereof to the party seeking indemnification, assume control of the defense of such suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; provided that the indemnifying party may not assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the party seeking indemnification. If the indemnifying party does not so assume control of such defense, the party seeking indemnification shall control such defense. The party not controlling such defense (the “Non-Controlling Party”) may participate therein at its own expense; provided that if the indemnifying party assumes control of such defense and the party seeking indemnification reasonably concludes that the indemnifying party and the party seeking indemnification have conflicting interests or different defenses available with respect to such suit or proceeding, the reasonable fees and expenses of counsel to the party seeking indemnification shall be considered “Damages” for purposes of this Agreement. The party controlling such defense (the “Controlling Party”) shall keep the Non-Controlling Party advised of the status of such suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such suit or proceeding (including copies of any summons, complaint or other pleading which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such suit or proceeding. The indemnifying party shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the party seeking indemnification, Indemnifying Party (which shall may not be unreasonably withheld or delayed; provided ), and the entering into of any settlement or compromise or the consent to any judgment in violation of the foregoing shall constitute a waiver by the Indemnified Party of its right to indemnity hereunder to the extent the Indemnifying Party was prejudiced thereby. Any Indemnifying Party shall be subrogated to the rights of the Indemnified Party to the extent that the Indemnifying Party pays for any loss, damage or expense suffered by the Indemnified Party hereunder. If the Indemnifying Party does not accept financial responsibility for the third party claim or fails to defend against the third party claim that is the subject of an Indemnity Notice within 30 days of receiving such notice (or sooner if the nature of the third party claim so requires), or otherwise contests its obligation to indemnify the Indemnified Party in connection therewith, the Indemnified Party may, upon providing written notice to the Indemnifying Party, pay, compromise or defend such third party claim without the prior consent of the party seeking indemnification shall (otherwise) Indemnifying Party. In the latter event, the Indemnified Party, by proceeding to defend itself or settle the matter, does not be required if waive any of its rights hereunder to later seek reimbursement from the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification shall not agree to any settlement of, or the entry of any judgment arising from, any such suit or proceeding without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayedIndemnifying Party.
Appears in 1 contract
Samples: Airline Services Agreement (Republic Airways Holdings Inc)
Indemnification Claims. (a) In the event the Parent or the Company Stockholders are entitled, or seek An Indemnified Party seeking to assert rights, rights to indemnification under this Article VI, the Parent or the Company Stockholders (as the case may be) VI shall give written notification to the Company Stockholders or the Parent (as the case may be) Stockholder Representatives of the commencement of any action, suit or proceeding relating to a third party claim for which indemnification pursuant to this Article VI may be sought. Such notification shall be given within 20 Business Days business days after receipt by the party seeking indemnification Indemnified Party of notice of such action, suit or proceeding, and shall describe in reasonable detail (to the extent known by the party seeking indemnificationIndemnified Party) the facts constituting the basis for such action, suit or proceeding and the amount of the claimed damages; provided, however, that no delay on the part of the party seeking indemnification Indemnified Party in notifying the indemnifying party Stockholder Representatives shall relieve the indemnifying party Indemnifying Parties of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. Within 20 days after delivery of such notification, the indemnifying party Stockholder Representatives may, upon written notice thereof to the party seeking indemnificationIndemnified Party, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the party seeking indemnification; Indemnified Party, provided the Stockholder Representatives acknowledge in writing to the Indemnified Party that any damages, fines, costs or other liabilities that may be assessed against the indemnifying party may not assume control of the defense of a Indemnified Party in connection with such action, suit or proceeding involving criminal liability or constitute Damages for which the Indemnified Party shall, subject to the limitations set forth in which equitable relief is sought against the party seeking indemnificationSection 6.4, be indemnified pursuant to this Article VI. If the indemnifying party does Stockholder Representatives do not so assume control of such defense, the party seeking indemnification Indemnified Party shall control such defense. The party Party not controlling such defense (the “"Non-Controlling Party”") may participate therein at its their own expense; provided that if the indemnifying party assumes Stockholder Representatives assume control of such defense and the party seeking indemnification Indemnified Party reasonably concludes that the indemnifying party Indemnifying Parties and the party seeking indemnification Indemnified Party have conflicting interests or different defenses available with respect to such action, suit or proceeding, the reasonable fees and expenses of one counsel to the party seeking indemnification Indemnified Party shall be considered “"Damages” " for purposes of this Agreement. The party Party controlling such defense (the “"Controlling Party”") shall keep the Non-Controlling Party reasonably advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the Non-Controlling Party with respect thereto. The Non-Controlling Party shall furnish the Controlling Party with such information as it may have with respect to such action, suit or proceeding (including copies of any summons, complaint or other pleading pleadings which may have been served on such party and any written claim, demand, invoice, billing or other document evidencing or asserting the same) and shall otherwise cooperate with and assist the Controlling Party in the defense of such action, suit or proceedingproceeding and provide the Controlling Party and its counsel access to (and the right to make copies of) the Surviving Corporation's books and records pertaining to such matter. The indemnifying party Stockholder Representatives shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the party seeking indemnificationIndemnified Party, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that the consent of the party seeking indemnification shall not be required if the indemnifying party agrees in writing to pay any amounts payable pursuant to such settlement or judgment and such settlement or judgment includes a complete release of the party seeking indemnification from further liability and has no other materially adverse effect on the party seeking indemnification. The party seeking indemnification Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such action, suit or proceeding without the prior written consent of the indemnifying partyStockholder Representatives, which shall not be unreasonably withheld withheld, conditioned or delayed; provided that if the Stockholder Representatives do not assume the defense of such action, suit or proceeding pursuant to this Section 6.2(a), the Indemnified Party shall be entitled to agree to a settlement of, or the entry of any judgment arising from, such action, suit or proceeding, after giving notice of the same to the Stockholder Representatives, on such terms as the Indemnified Party in good faith may deem appropriate.
Appears in 1 contract
