Indemnification Procedure. i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party. ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions. iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed. iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 3 contracts
Sources: License Agreement (Onconova Therapeutics, Inc.), License Agreement (Onconova Therapeutics, Inc.), License Agreement (Onconova Therapeutics, Inc.)
Indemnification Procedure. iIf any third party shall notify any party to this Agreement (the "Indemnified Party") Each with respect to any matter which may give rise to a claim for indemnification against any other party (the "Indemnifying Party") under this Section 4, then the Indemnified Party shall notify each Indemnifying Party thereof promptly; provided however, that no delay on the other in part of the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The notifying any Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, relieve the Indemnifying Party may assume from any liability or obligation hereunder unless (and then solely to the defense of extent) the Indemnifying Party thereby is damaged. In the event any Third Indemnifying Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to notifies the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with 10 days after the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after has given notice of the matter that the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claimsParty is assuming the defense thereof, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to defend the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after against the date of assumption of defense in connection matter with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless 's choice reasonably satisfactory to the Indemnifying Party, (aii) the engagement thereof has been specifically requested by the Indemnifying Indemnified Party in writingmay retain separate co-counsel at its sole cost and expense, or (biii) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal matter without the written consent of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3not to be withheld unreasonably, and (iv) the Indemnifying Party will have authority to not consent to the entry of any judgmentjudgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or otherwise dispose of such Damagesclaimant in the matter releases the Indemnified Party for all liability with respect thereto, provided it obtains without the prior written consent of the Indemnified Party, Party not to be unreasonably withheld or delayed.
iv) The unreasonably. In the event no Indemnifying Party notifies the Indemnified Party with 10 days after the Indemnified Party has given notice of the matter that has assumed the Indemnifying Party is assuming the defense of thereof, however, the Third Indemnified Party claim in accordance with this Section 16.3 will not be liable for may defend against, or enter into any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, the matter in any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as manner it reasonably may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationdeem appropriate.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Surebet Casinos Inc), Stock Purchase Agreement (Realamerica Co/New)
Indemnification Procedure. i(a) Each Promptly following receipt by an Indemnified Party shall notify the other in the event it becomes aware of notice by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding third party (including any governmental Governmental Entity) of any complaint, dispute or claim or the commencement of any audit, investigation) shall be instituted involving any , action or proceeding with respect to which such Indemnified Party in respect of which indemnity may be sought pursuant entitled to this Article 16, such Party (receive payment from the “Indemnified Party”) shall promptly notify the other Party applicable Shareholder or Shareholders (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)for any Purchaser Losses, such Indemnified Party shall provide written notice thereof to the Indemnifying Party. Failure of the Indemnified Party to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party, except to the extent the defense of such audit, investigation, action or proceeding is prejudiced by the Indemnified Party’s failure to give such notice. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** twenty (20) days thereafter to assume the defense of such audit, investigation, action or until such time provided in any applicable extension proceeding, including the employment of counsel reasonably satisfactory to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any and the payment of the fees and disbursements of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which counsel. Until the Indemnifying Party expressly agrees assumes the defense of such audit, investigation, action or proceeding, the Indemnified Party may defend against such audit, investigation, action or proceeding in writing that, as between any manner the Indemnified Party reasonably deems appropriate. If the Indemnifying Party and does not, within such twenty (20) day period, assume the defense of such audit, investigation, action or proceeding, to the Indemnified Party, the Indemnifying Party shall will be solely obligated bound by any judicial determination made with respect to satisfy and discharge the claim in full (the matters described in (i) and (ii)such audit, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfiedinvestigation, by written notice action or proceeding, subject to the Indemnifying Party within the Election Time Periodprovisions of Section 9.2(b) below. If In any audit, investigation, action or proceeding for which indemnification is being sought hereunder the Indemnified Party fails to promptly provide an Indemnification Claim Noticeor the Indemnifying Party, and such failure materially prejudices whichever is not assuming the defense of such claimaction, then shall have the right to participate in such matter and to retain its or their own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party shall be relieved or Indemnified Party (as the case may be) reasonably apprised of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming status of the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in matter the defense of the Third Party claim. Should the Indemnifying Party assume which it is maintaining and continue to cooperate in good faith with each other with respect to the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or matter.
(b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the No Indemnified Party will control the defense), may settle or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to compromise any claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose judgment with respect to which indemnification is being sought hereunder without the prior written consent of such Damages, on such terms as the Indemnifying PartyParty (which may not be unreasonably withheld or delayed), in its reasonable discretionunless such settlement, will deem appropriate (provided, however that such terms shall include a complete and compromise or consent includes an unconditional release of the Indemnified Indemnifying Party and its or their officers, directors, employees and Affiliates from all liability with respect thereto)arising out of, and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to or related to, such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Partyclaim. With respect to all other Damages in connection with Third Party claims, where the No Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3may, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party, from all liability arising out of such claim, (y) does not to be unreasonably withheld contain any admission of wrongdoing or delayedliability on behalf of the Indemnified Party and (z) involves only the payment of cash.
iv(c) The Indemnifying Party that has assumed In the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by event an Indemnified Party that is reached without the claims a right to payment pursuant hereto for a claim other than a claim asserted by a third party, such Indemnified Party shall send written consent notice of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party (a “Notice of Claim”). Such Notice of Claim shall specify the opportunity to assume basis for such claim. In the defense of the Third Party claim in accordance with this Section 16.3. If event the Indemnifying Party chooses to defend or prosecute any Third Party claim, does not notify the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish within thirty (30) days following its receipt of such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to notice that the Indemnifying Party todisputes its liability to the Indemnified Party under this Article or the amount thereof, and reasonable retention the claim specified by the Indemnified Party of, records and information that are reasonably relevant to in such Third Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party claimunder this Article IX, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse shall pay the amount of such liability to the Indemnified Party for all on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such later date when the amount of such claim (or such portion of such claim) becomes finally determined. In the event the Indemnifying Party has timely disputed its reasonable out-of-pocket expenses incurred liability with respect to such claim as provided above, as promptly as possible, such Indemnified Party and the Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days following the final determination of the merits and amount of such claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in connection with an amount equal to such cooperationclaim as determined hereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (American Airlines Inc), Stock Purchase Agreement (Amr Corp)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which The party seeking indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Agreement (the “"Indemnified Party”") shall promptly notify the other Party party from which indemnification is being sought (the “"Indemnifying Party”") (or, if indemnification is sought pursuant to the Escrow Agreement, the Representative and the Escrow Agent) of the facts and circumstances upon which the Indemnified Party intends to base a claim for indemnification hereunder ("Notices"). Notice shall in writing all events be considered prompt if given (an “Indemnification Claim Notice”)1) no later than 15 days after the Indemnified Party learns of the facts upon which it will claim such indemnification or (2) if earlier, in sufficient time to allow the Indemnifying Party to exercise its rights pursuant to this Article VIII; provided, however, that the failure to provide such Notice of claims promptly (so long as a notice of claims is given before the date on which the applicable representation or warranty ceases to survive) shall not affect the obligations of the Indemnifying Party hereunder except to the extent the Indemnifying Party is prejudiced thereby. The Indemnifying Party and Indemnified Party shall promptly meet have the right, at its own cost, to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume participate jointly in the defense of any Third Party claim subject to indemnification as provided for third-party claim, demand, lawsuit or other proceeding in this Section 16.3 by giving written notice to connection with which the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complainthas claimed indemnification hereunder, if any, but no longer than ** and may elect (the “Election Time Period”); with "Election") to take over the defense of such claim within 10 business days following Notice thereof upon its written unconditional acknowledgment of its obligation to indemnify the Indemnified Party being obligated with respect to make all reasonable efforts such claim; provided, however, that theglobe shall be permitted, at its option, to obtain require that the Sellers shall not take over the defense of any claim brought by any Person with which theglobe or the Surviving Corporation has a material business relationship against any member of theglobe Indemnified Group for which indemnification is available pursuant to this Article VIII, and upon exercise of such extension) after option such member of theglobe Indemnified Group shall defend such claim, subject to the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, following conditions: (i) that solely seek monetary damages the Sellers shall be entitled, in their discretion and at their expense, to engage counsel and to participate in any discussions, meetings, negotiations and other communications which may be held or conducted between such member of theglobe Indemnified Group and such customer or supplier, or their respective counsels, with respect to such claim; (ii) as such member of theglobe Indemnified Group shall consult with the Representative before making or communicating to which such customer or supplier, or its counsel, any decisions concerning such member's strategy or position with respect to the defense of such claim; and (iii) such member of theglobe Indemnified Group shall not settle or otherwise dispose of such claim without the consent of the Representative. If the Indemnifying Party expressly agrees in writing thatmakes an Election, (x) it shall keep the Indemnified Party informed as between to the Indemnifying Party status of the applicable matter and shall send promptly copies of all pleadings to the Indemnified Party, (y) with respect to any issue involved in such claim, it shall have the Indemnifying Party sole right, with respect to claims or portions of claims seeking monetary damages only, to settle or otherwise dispose of such claim on such terms as it, in its sole discretion, shall be solely obligated to satisfy and discharge deem appropriate; provided, however, that the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If consent of the Indemnified Party fails to promptly provide an Indemnification Claim Noticethe settlement or disposition shall be required if such settlement or disposition shall result in or would reasonably be expected to result in any Liability to, equitable relief against or adverse business effect on the Indemnified Party, which consent shall not be unreasonably withheld or delayed, and such failure materially prejudices (z) the Indemnified Party shall have the right to participate jointly in the defense of such claim, then the Indemnifying Party but shall be relieved of do so at its responsibility own cost not subject to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3reimbursement. If the Indemnifying Party chooses does not elect to defend or prosecute any Third Party take over the defense of a third-party claim, the Indemnified Party will cooperate shall have the right to contest, compromise or settle such claim in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including exercise of its reasonable judgment.
(b) Notwithstanding any provision of this Article VIII to the extent possiblecontrary, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded respect to any third-party claim or demand that the Indemnifying Party tois defending, the Indemnified Party shall have the right to retain separate counsel to represent it and reasonable retention the Indemnifying Party shall pay the fees and expenses of such separate counsel if the Indemnified Party receives and certifies to the Indemnified Party that it has received advice of counsel to the effect that there exist sufficient conflicts that make it reasonably necessary or appropriate for separate counsel to represent the Indemnified Party and the Indemnifying Party.
(c) The amounts for which an Indemnifying Party shall be liable under Sections 8.2 and 8.3 of this Agreement shall be net of any insurance proceeds received by the Indemnified Party of, records and information that are reasonably relevant to (less the costs of collection of such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse insurance proceeds) compensating the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationLosses of the Indemnified Party for which the Indemnifying Party would otherwise be liable pursuant to this Article VIII.
Appears in 2 contracts
Sources: Merger Agreement (Theglobe Com Inc), Merger Agreement (Theglobe Com Inc)
Indemnification Procedure. (i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 1618. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 1618, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 18.3 by giving written notice to the Indemnified Party within [** **] (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than [** **] (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages [***] and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and [***] (ii)) , the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
(ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.318.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.318.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.318.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 18.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
(iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), [***] and will transfer to the Indemnified Party all amounts which said such Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.318.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld withheld, delayed or delayedconditioned.
(iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 18.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.318.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals [***] as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder[***]. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
(v) In the event Edison seeks indemnification from the counterparty to an Upstream Agreement for a matter for which Apollomics would be entitled to indemnification pursuant to Section 18.1, E▇▇▇▇▇ shall include Apollomics as an indemnitee to the extent Apollomics has suffered damages by relevant claim under the Upstream Agreement.
Appears in 2 contracts
Sources: License Agreement (Edison Oncology Holding Corp), License Agreement (Edison Oncology Holding Corp)
Indemnification Procedure. (i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within [** **] (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than [** **] (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
(ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
(iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said such Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld withheld, delayed or delayedconditioned.
(iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: License Agreement (Pelthos Therapeutics Inc.), License Agreement (Novan, Inc.)
Indemnification Procedure. i) 13.3.1 Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16XIII. In case any claim, suit, action, demand or other proceeding (including any governmental investigation) shall be instituted involving any Party or its Indemnitees in respect of which indemnity may be sought pursuant to this Article 16XIII, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”); provided, that the failure to promptly provide an Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations except, and only to the extent, that the Indemnifying Party is actually incrementally damaged as a result of such failure. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any a Third Party claim subject to indemnification as provided for in this Section 16.3 13.3 with competent counsel free of any conflict of interest with the Indemnified Party by giving written notice (a “Defense Election Notice”) to the Indemnified Party within [** (or until such time provided in any **] after its receipt of the applicable extension to appropriately answer any complaint, if any, but no longer than ** Indemnification Claim Notice (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, claims (ia) that solely seek monetary damages and (iib) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (ia) and (iib), the “Litigation Conditions”). The If the Indemnifying Party does not deliver a Defense Election Notice to the Indemnified Party may during the applicable Election Time Period, or if any Litigation Condition is not satisfied, the Indemnified Party will assume responsibility for and control such defense if and, without limiting the Litigation Conditions are not satisfiedIndemnifying Party’s indemnification obligations, by written notice to the Indemnifying Party within the Election Time Period. If will reimburse the Indemnified Party fails to promptly provide an Indemnification Claim Noticefor all costs and expenses, and such failure materially prejudices the defense of such claimincluding reasonable attorneys’ fees, then the Indemnifying Party shall be relieved of its responsibility to indemnify incurred by the Indemnified PartyParty in defending itself. [***] Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.
ii) 13.3.2 Upon assuming the defense of a Third Party claim in accordance with this Section 16.313.3, the Indemnifying Party shall be entitled to appoint lead and competent counsel free of any local counsel conflict of interest with the Indemnified Party in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.313.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.313.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own cost and expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 13.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) 13.3.3 Subject to the Litigation Conditions being continuing to be satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however however, that such terms (a) shall include a complete and unconditional release of the Indemnified Party from all liability with respect theretothereto and (b) shall not include any admission of fault by, or impose any liability or obligation on, the Indemnified Party), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other entries of judgment, entries into settlements or other dispositions of Damages in connection with a Third Party claims, where claim for which the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.313.3, the Indemnifying Party will only have authority to consent to the entry of any such judgment, enter entry into any such settlement or otherwise dispose such other disposition of such Damages, provided Damages if it obtains the prior written consent of has obtained the Indemnified Party’s prior written consent, not to be unreasonably withheld withheld, conditioned or delayed.
iv) 13.3.4 The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 13.3 (and continues to maintain control of such defense pursuant to this Section 13.3) will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the prior written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.313.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents Agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-out of pocket expenses incurred in connection with such cooperation.
13.3.5 Each Party shall maintain, at its cost, a program of insurance or self-insurance against liability and other risks associated with its activities and obligations under this Agreement, including its Clinical Trials, its Development, use, manufacture and Commercialization of any Licensed Product Candidates or Licensed Products and its indemnification obligations hereunder, in such amounts, subject to such deductibles and on such terms as are customary for the activities to be conducted by it under this Agreement. All insurance required by this Section 13.3.5 shall be maintained during the Term and each Party shall, from time to time, provide copies of certificates of such insurance to the other Party upon request. Further, each Party shall list the other Party as an additional insured on all insurance policies. All insurance required by this Section 13.3.5 shall be maintained for at least [***] following expiration or termination of this Agreement.
Appears in 2 contracts
Sources: Development and Commercial License Agreement (Precision Biosciences Inc), Development and Commercial License Agreement (Precision Biosciences Inc)
Indemnification Procedure. i(a) Each Party shall notify Any party seeking indemnification (the "Indemnified Party") from any other in party (the event it becomes aware of a claim for which indemnification may be sought "Indemnifying Party") with respect to any claim, demand, action, proceeding or other matter pursuant to this Article 16. In case any proceeding Agreement other than a claim by Purchaser with respect to Taxes (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”a "Claim") shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party of the existence of the Claim, setting forth in reasonable detail the facts and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its optioncircumstances pertaining thereto, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided basis for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until Party's right to indemnification, the amount of Damages for which indemnification is being asserted, if known, and, in the case of third party claims, such time provided in any applicable extension to appropriately answer any complaintnotice shall be accompanied by copies of all relevant pleadings, demands and other papers, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify served on the Indemnified Party.
ii(b) Upon assuming the defense of If any third party shall notify any Indemnified Party with respect to any matter which may give rise to a Third Party claim in accordance with this Section 16.3, Claim for indemnification against the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claimunder this Agreement, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to then the Indemnified Party for any legal expenses subsequently incurred by such Indemnified shall promptly notify each Indemnifying Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposethereof; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is materially prejudiced by such engagement failure to give notice. In the event that any Indemnifying Party notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party would be required to indemnify the Indemnified Party in full against any such Claim and is assuming the defense thereof:
(i) the Indemnifying Party will be at defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party’s own ;
(ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense unless (except that the Indemnifying Party will be responsible for the reasonable fees and expenses of the separate co-counsel (a) to the engagement thereof has been specifically requested by extent the Indemnified Party concludes reasonably based upon written advice of counsel that a conflict of interest exists between the Indemnified Party and Indemnifying Party in writing, or (b) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party has failed and such Indemnified Party shall have been advised in writing by counsel that there may be one or more material legal defenses available to assume and actively further the defense and engage counsel in accordance with this Section 16.3 Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party, but the assertion of which would be materially adverse to the interest of the Indemnified Party);
(in which case iii) the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the matter without the written consent of such Damages, on such terms as the Indemnifying PartyParty (not to be withheld or delayed unreasonably);
(iv) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement (other than with respect to a judgement or settlement involving exclusively money damages), in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release without the written consent of the Indemnified Party (not to be withheld or delayed unreasonably), provided, that, in the case of entry of any such judgement or settlement (to the extent involving exclusively money damages), the claimant or plaintiff in the matter shall have provided the Indemnified Party a written release from all liability with respect thereto; and
(v) subject to Section 10.3(d), and will transfer within 30 days after the Determination Date with respect to a third party Claim, the Indemnifying Party shall pay the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal the amount of such claim prior to the time such payments become due Damages incurred by the Indemnified Party. With As used herein, the term "Determination Date" shall mean the date on which the Determination is final, legally binding, and non-appealable. As used herein, the term "Determination" shall mean (i) the final non-appealable judgment by a court of competent jurisdiction with respect to all other Damages in connection with Third Party claims, where the any third party Claim covered by this Article X or (ii) a compromise and settlement agreement executed and delivered by both Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an and Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, to any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with third party Claim covered by this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.Article X.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Arcon Coating Mills Inc), Stock Purchase Agreement (Specialty Paperboard Inc)
Indemnification Procedure. i(a) Each Party shall notify Any party seeking indemnification (the "INDEMNIFIED PARTY") from any other in party (the event it becomes aware of a claim for which indemnification may be sought "INDEMNIFYING PARTY") with respect to any claim, demand, action, proceeding or other matter pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Agreement (the “Indemnified Party”"CLAIM") shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party of the existence of the Claim, setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Party's right to indemnification.
(b) If any third party shall notify any Indemnified Party with respect to any matter which may give rise to a Claim for indemnification against the Indemnifying Party under this Agreement, then the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the notify each Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposethereof; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is materially prejudiced by such engagement failure to give notice. In the event that any Indemnifying Party notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party would be required to indemnify the Indemnified Party in full against any such Claim and is assuming the defense thereof:
(i) the Indemnifying Party will be at defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party’s own ;
(ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense unless (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel (a) to the engagement thereof has been specifically requested by extent the Indemnified Party concludes reasonably based upon advice of counsel that a conflict of interest exists between the Indemnified Party and Indemnifying Party in writing, or (b) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party has failed and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to assume and actively further the defense and engage counsel in accordance with this Section 16.3 Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party, but the assertion of which would be adverse to the interest of the Indemnified Party);
(in which case iii) the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the matter without the written consent of such Damages, on such terms as the Indemnifying PartyParty (not to be withheld unreasonably); and
(iv) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement which (A) provides for other than monetary damages, in its reasonable discretion, will deem appropriate (provided, however that such terms shall B) does not include a complete provision whereby the plaintiff or claimant in the matter unconditionally and unconditional release of irrevocably releases the Indemnified Party from all liability with respect thereto)thereto without any further obligation and (C) contains any admission of liability, and will transfer to without the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, Party (not to be unreasonably withheld or delayed.
iv) The Indemnifying Party unreasonably); provided that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without if the written consent of such Indemnifying Party. The the Indemnified Party will is not admit any liability with respect torequired under this clause (iv), or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party shall give the opportunity Indemnified Party notice of its intent to settle together with the proposed terms of the settlement and the Indemnified Party shall have the right, exercisable within 10 days of receipt of such notice, to assume the defense of such action and the Third Indemnifying Party's liability to indemnify the Indemnified Party claim hereunder for such action shall be capped at the dollar amount of the monetary damages provided for in accordance with this Section 16.3. the offer to settle such action.
(c) If no Indemnifying Party notifies the Indemnified Party within 30 days after the Indemnified Party has given notice of the matter that the Indemnifying Party chooses to defend or prosecute any Third Party claimis assuming the defense thereof, then the Indemnified Party will cooperate in the defense may defend against, or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection enter into any settlement with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party respect to, the matter in any manner it reasonably may deem appropriate, without prejudice to any of its rights hereunder.
(d) The Indemnified Party shall be entitled to reimbursement of reasonable expenses included in Damages with respect to any Claim (including, without limitation, the cost of defense, preparation and reasonable retention investigation relating to such Claim) as such expenses are incurred by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 2 contracts
Sources: Stock Purchase Agreement (National Fiberstok Corp), Stock Purchase Agreement (National Fiberstok Corp)
Indemnification Procedure. i(a) Each Promptly following receipt by an Indemnified Party of notice by a third party (including any Governmental Authority) of any complaint, dispute or claim or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from an Indemnifying Party for any Buyer Damages or any Stockholder Damages (as the case may be), such Indemnified Party shall notify in writing Buyer or Stockholders, as the other in the event it becomes aware of a claim for which indemnification case may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party , and Indemnified Party shall promptly meet provide to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume Party: (i) a reasonably detailed description of the defense claim; (ii) copies of any Third Party claim subject all relevant documentation relating to indemnification as provided such claim; and (iii) the basis for in this Section 16.3 by giving written notice indemnification, including reference to the provisions hereof under which the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be believes it is entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeindemnification; provided, however, that such engagement the failure to give prompt notice will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by relieve the Indemnifying Party in writingfrom such party’s obligations under this Article VII only if, or (b) and only to the extent that, such failure shall have actually prejudiced the rights and defenses otherwise available to the Indemnifying Party has failed with respect to such claim. The Indemnifying Party shall have the right, upon written notice delivered to the Indemnified Party within twenty (20) days thereafter to assume and actively further responsibility (subject to the defense and engage counsel limitations set forth in accordance with this Section 16.3 Agreement) for any Buyer Damages or Stockholder Damages (as the case may be) resulting from such action or proceeding, in which case the Indemnifying Party shall assume the defense of such audit, investigation, action or proceeding and shall employ counsel reasonably satisfactory to the Indemnified Party will control and pay the defense)fees and disbursements of such counsel. In the event, or (c) however, that the Indemnifying Party no longer satisfies declines or fails to assume the Litigation Conditions.
iii) Subject defense of the audit, investigation, action or proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Litigation Conditions Indemnified Party, in either case within such twenty (20) day period, then any Buyer Damages or any Stockholder Damages (as the case may be) shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any audit, investigation, action or proceeding for which indemnification is being satisfiedsought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party will have or Indemnified Party (as the sole right case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining, including the status of any related insurance claim, and to cooperate in good faith with each other with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgmentjudgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld), enter into any settlement or otherwise dispose unless (i) the Indemnifying Party fails to assume and maintain the defense of such Damagesclaim pursuant to Section 7.3(a) and (ii) such settlement, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and compromise or consent includes an unconditional release of the Indemnified Indemnifying Party and its officers, directors, employees and Affiliates from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal Liability arising out of such claim prior to the time such payments become due by the Indemnified Partyclaim. With respect to all other Damages in connection with Third Party claims, where the An Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3may not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld), settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all Liability arising out of such claim, (y) does not contain any admission or statement suggesting any wrongdoing or Liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
(c) In the event an Indemnified Party claims a right to payment pursuant this Article VII not involving a third party claim, not such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party (a “Notice of Claim”). Such Notice of Claim shall include: (i) a reasonably detailed description of the claim; (ii) copies of all relevant documentation relating to such claim; and (iii) the basis for indemnification, including reference to provisions hereof under which the Indemnified Party believes it is entitled to indemnification.
(d) Notwithstanding anything in this Agreement to the contrary, to the extent any provision of this Section 7.3 conflicts with or is duplicative of any provision of Sections 1.19(c), 5.3(b) or 5.9, the provisions of Sections 1.19(c), 5.3(b) or 5.9, as applicable, shall control.
(e) Notwithstanding any other provision in this Section 7.3 and except as set forth in Section 5.16 dealing with ISRA matters or Section 5.18 dealing with environmental insurance, with respect to any claim for indemnification for Buyer Damages by any Buyer Indemnified Party or Parties under this Agreement related to any environmental matter, including environmental matters under Section 7.1(a), the following shall apply:
(i) Subject to the terms of this Section 7.3(e), Buyer Indemnified Parties shall solely control the timing, type and scope of response action, Remedial Action or other action to be unreasonably withheld or delayedtaken to satisfy the Buyer Damages which are a subject of a claim for indemnification by Buyer Indemnified Parties under this Agreement.
(ii) Buyer Indemnified Parties, in connection with a claim for indemnification against CSE Holders under this Agreement with respect to environmental matters, shall (A) file a notice of claim with any insurance company which would reasonably be expected to provide coverage for any Buyer Indemnified Party for the claim at issue, and provide a copy of such notice of claim to the CSE Holders, and (B) notify third parties who would reasonably be expected to have an obligation to indemnify any Buyer Indemnified Party pursuant to any contract, lease or purchase agreement for the claim at issue, and provide a copy of such notice and any response thereto to the CSE Holders.
(iii) Buyer Indemnified Parties shall not be required to accept, use or impose engineering controls, institutional controls or restrictive covenants as part or all of a response action, Remedial Action or other action (all referred to collectively and individually in this Section 7.3(e) as “Restrictions”) unless:
(1) the Restrictions will not materially interfere with the conduct of any Business operations at any of the Assets of the Company or its Subsidiaries or Leased Real Property;
(2) the Restrictions do not conflict with the terms of any lease at any of the Leased Real Properties and the landlord at the Leased Real Property consents to the Restrictions;
(3) the CSE Holders pay, or provide a funding mechanism to pay, for the installation and all operation, maintenance, repair and replacement of all Restrictions for a thirty (30) year period or until the termination of all Restrictions, whichever is earlier; and
(4) if the costs, at a single property, of completing any actions referred to in (i), above, without any Restrictions to satisfy the Buyer Damages are not more than $200,000 more than the costs of completing such actions with Restrictions, then such actions shall be completed without Restrictions. If the costs, at a single property, of completing any actions referred to in (i) above, without Restrictions to satisfy the Buyer Damages are more than $200,000 more than the costs of completing such actions with Restrictions, then Buyer Indemnified Parties shall not implement the actions at that single property without Restrictions unless Buyer Indemnified Parties pay the amount of the costs for such actions which exceed that $200,000 incremental amount. The CSE Holders shall pay all the costs except for such amount in excess of the $200,000 incremental amount. In all cases, the Assets of the Company and its Subsidiaries and Leased Real Property shall not be subject to any Restrictions that do not allow non-residential use of such Assets or Leased Real Property.
(iv) The Indemnifying Party that has assumed Buyer Indemnified Parties shall control the defense of any claim and the Third Party actions to meet obligations which are a subject of a claim for indemnification by Buyer Indemnified Parties, including all contacts, communications and meetings with Governmental Authorities and non-governmental third-party claimants. The Buyer Indemnified Parties shall provide the CSE Holders with a reasonable opportunity of not less than seven (7) Business Days (if feasible and no violation of Environmental Law will result because of such a delay) prior to their anticipated submission to the relevant Governmental Authorities to review and comment upon drafts of all documents to be submitted by the Buyer Indemnified Parties in accordance connection with this Section 16.3 will not be liable for any settlement response action, Remedial Action or other disposition of any Damages by an Indemnified Party action in response to a matter that is reached without the written consent subject of such Indemnifying Partyan indemnification claim. The Buyer Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering Parties shall make a good faith effort to include the Indemnifying Party CSE Holders’ reasonable and substantive comments regarding the opportunity to assume the defense content of the Third Party claim in accordance with this Section 16.3. If documents prior to their submission by the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Buyer Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including Parties to the extent possiblethat such comments are supportable by and in compliance with the applicable Environmental Law. The Buyer Indemnified Parties shall promptly provide the CSE Holders with written notice, former employees at least five (5) Business Days (if feasible and no violation of Environmental Law will result because of such a delay) prior to meeting with any representatives of any Governmental Authority or other parties to such matter, and the CSE Holders shall have the right to attend such conferencesmeetings. The CSE Holders shall also have the right, discovery proceedingsupon reasonable prior notice, hearings, trials to visit and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded inspect any property that is the subject of an indemnity claim and to observe the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation conduct of any material provided hereunder. The Indemnifying Party will reimburse response action, Remedial Action or other action being taken to address the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationasserted Damages or Liability.
Appears in 2 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (Rock-Tenn CO)
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which that indemnification may be sought pursuant under this Article VIII (an “Indemnification Claim”) in connection with any action, suit or proceeding that may be instituted or asserted by any Person not a party to this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any a “Third Party in respect of which indemnity may be sought pursuant to this Article 16Action”), such Party the party seeking indemnification hereunder (the “Indemnified Party”) shall promptly notify cause written notice of the other assertion of such Indemnification Claim to be delivered to the Party from whom indemnification hereunder is sought (the “Indemnifying Party”) prior to the expiration of the applicable survival period set forth in writing Section 8.1; provided, however, that no delay on the part of the Indemnified Party in giving any such notice shall relieve the Indemnifying Party of any indemnification obligation hereunder unless (an “Indemnification Claim Notice”)and then solely to the extent that) the Indemnifying Party is prejudiced by such delay. The Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party shall promptly meet Party, and to discuss how to respond to defend against, negotiate, settle or otherwise deal with any claims that are the subject matter of such proceeding. At its optionIndemnification Claim and, if the Indemnifying Party may assume elects to defend against, negotiate, settle or otherwise deal with any Indemnification Claim, it shall within thirty (30) days (or sooner, if the defense nature of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnification Claim so requires) (the “Dispute Period”) notify the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** writing (the “Election Time PeriodDefense Assumption Notice”); with ) of its intent to indemnify and hold harmless the Indemnified Party being obligated from and against the entirety of any and all Losses, subject to make all the other provisions of this Article VIII, that the Indemnified Party may suffer resulting from arising out of, or relating to, in the nature or, or caused by the Third Party Action; provided, however, that if within a reasonable efforts time period (not to obtain any such extensionexceed ninety (90) after days) following the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which date the Indemnifying Party expressly agrees in writing that, as between delivers the Indemnifying Party and Defense Assumption Notice to the Indemnified Party, the Indemnifying Party discovers or identifies new facts or circumstances which lead such Indemnifying Party to reasonably believe that such claim is not a claim that results or would result in the incurrence by such Indemnified Party of any Loss for which such Indemnified Party would be entitled to indemnification from such Indemnifying Party pursuant to this Article VIII, such Indemnifying Party may promptly (but in any event within such ninety (90) day period) notify the Indemnified Party in writing of such facts or circumstances and state that such Indemnifying Party is retracting the Defense Assumption Notice and, thereafter, the Defense Assumption Notice shall be solely obligated of no further force and effect and the Indemnifying Party shall no longer be entitled to satisfy and discharge assume the defense of such claim in full (nor shall it be required to indemnify or hold harmless the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for against such defense if Losses, provided that the Litigation Conditions are delivery of such written notification would not satisfied, by written notice materially prejudice the Indemnified Party’s ability to conduct a good faith defense. If the Indemnifying Party within the Election Time PeriodDispute Period elects not to defend against, negotiate, settle or otherwise deal with any Indemnification Claim, the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Indemnification Claim (and, such defense shall not prevent such Indemnified Party from being able to seek to obtain indemnification from the Indemnifying Party pursuant to the terms of this Article VIII). If the Indemnifying Party assumes the defense of any Indemnification Claim, the Indemnified Party fails to promptly provide an Indemnification Claim Noticemay participate, and such failure materially prejudices at its own expense, in the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeIndemnification Claim; provided, however, that such engagement will Indemnified Party shall be entitled to participate in any such defense with separate counsel at the Indemnified Party’s own expense unless of the Indemnifying Party if (ax) the engagement thereof has been specifically so requested by the Indemnifying Party in writing, to participate or (by) in the Indemnifying Party has failed reasonable opinion of counsel to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld a conflict or delayed.
iv) The potential conflict exists between the Indemnified Party and the Indemnifying Party that has assumed would make such separate representation advisable; provided, further, however, that the defense Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any single Indemnification Claim. The Parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of the Third Party claim any such Indemnification Claim. Notwithstanding anything in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an 8.5 to the contrary, neither the Indemnifying Party nor the Indemnified Party that is reached shall, without the written consent of the other Party, settle or compromise any Indemnification Claim or permit a default or consent to entry of any judgment unless the claimant and such Party provide to such other Party an unqualified release from all liability in respect of the Indemnification Claim. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party. The ’s willingness to accept the settlement offer and, subject to the applicable limitations of Section 8.4, pay the amount called for by such offer, and the Indemnified Party will not admit declines to accept such offer, the Indemnified Party may continue to contest such Indemnification Claim, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect toto such Indemnification Claim that the Indemnifying Party has an obligation to pay hereunder shall be limited to the lesser of (i) the amount of the settlement offer that the Indemnified Party declined to accept plus the Losses of the Indemnified Party relating to such Indemnification Claim through the date of its rejection of the settlement offer; or (ii) the aggregate Losses of the Indemnified Party with respect to such Indemnification Claim.
(b) In the event that an Indemnified Party determines to assert any claim against an Indemnifying Party hereunder which does not involve an action, suit, proceeding or settleclaim by a third party not party to this Agreement, compromise or discharge, any Third such Indemnified Party claim without first offering shall assert such Indemnification Claim by sending written notice to the Indemnifying Party describing in reasonable detail the opportunity to assume nature of such claim and the defense Indemnified Party’s estimate of the Third amount of Losses attributable to such claim.
(c) After any final and non-appealable decision, judgment or award shall have been rendered by a court of competent jurisdiction, or a settlement or arbitration shall have been consummated, or the Indemnified Party claim in accordance with this Section 16.3. If and the Indemnifying Party chooses shall have arrived at a mutually binding agreement (any such event a “Final Determination”) with respect to defend or prosecute any Third Party claimIndemnification Claim hereunder, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to then the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant shall pay any amount so determined to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Frischs Restaurants Inc)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification of any Claim Notice”)or Losses for which it is entitled to indemnification pursuant to Section 13.2 or 13.3, as applicable. Concurrent with the provision of notice pursuant to this section, the Indemnified Party shall provide to the other Party copies of any complaint, summons, praecipe, subpoena or other court filings or correspondence related to such Claim and will give such other information with respect thereto as the other Party shall reasonably request. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to such Claim. Failure to provide prompt notice shall not relieve any claims that are Party of the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject duty to indemnification as provided for in this Section 16.3 by giving written notice defend or indemnify except to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and extent such failure materially prejudices the defense of any matter. Each Party agrees that it will take reasonable steps to minimize the burdens of the litigation on witnesses and on the ongoing business of the Indemnified Parties, including making reasonable accommodations to witnesses’ schedules when possible and seeking appropriate protective orders limiting the duration and/or location of depositions.
(b) Should either Party dispute that any Claim or portion of a Claim (“Disputed Claim”) of which it receives notice pursuant to Section 13.4(a), is an indemnifiable Claim, it shall so notify the other Party providing written notice in sufficient time to permit such claimother Party to retain counsel and timely appear, then the Indemnifying answer and/or move in any such action. In such event, such other Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by defend against such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeClaim; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by other Party shall not settle any Claim that it contends is an indemnified Claim without providing the Indemnifying Party in writing, or ten (b10) the Indemnifying Party has failed Business Days’ notice prior to any such settlement and an opportunity to assume and actively further the defense and engage counsel in accordance with indemnification of such Claim pursuant to this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject Agreement. If it is determined that a Disputed Claim is subject to the Litigation Conditions being satisfiedindemnification, the Indemnifying Party will have reimburse the sole right to consent to the entry of any judgmentcosts and expenses, enter into any settlement or otherwise dispose of such Damagesincluding reasonable attorneys’ fees, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: Merger Agreement (Allergan Inc), License Agreement (Indevus Pharmaceuticals Inc)
Indemnification Procedure. i) Each When required to indemnify an Indemnified Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to accordance with this Article 16. In case any proceeding 8, PEGI or the relevant PSP Project Entity, as applicable (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16such capacity, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) shall assume on behalf of such Indemnified Party and conduct with due diligence and in writing (an “Indemnification good faith the defense of any Claim Notice”)against such Indemnified Party and shall bear the expense thereof, whether or not the Indemnifying Party shall be joined therein, and the Indemnified Party shall cooperate with the Indemnifying Party in such defense. The Indemnifying Party shall have charge and direction of the defense and settlement of such Claim, provided, however, that without relieving the Indemnifying Party of its obligations hereunder or impairing the Indemnifying Party’s right to control the defense or settlement thereof, the Indemnified Party shall promptly meet to discuss how to respond to any claims that are be consulted on the subject matter defense and settlement of such proceeding. At its option, the Indemnifying Party Claim and may assume elect to participate through separate counsel in the defense of any Third such Claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party claim subject to indemnification as provided for unless (a) the employment of counsel by such Indemnified Party has been authorized in this Section 16.3 writing by giving written notice to the Indemnifying Party, (b) the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt shall have reasonably concluded that there exists a material conflict of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The such Indemnified Party may assume responsibility for such defense if in the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices conduct of the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 Claim (in which case the Indemnified Indemnifying Party will shall not have the right to control the defense), defense or settlement of such Claim on behalf of such Indemnified Party) or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will shall not have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer employed counsel reasonably acceptable to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal assume the defense of such claim prior Claim within a reasonable time after notice of the commencement thereof. In each of such cases set forth in the second sentence of this paragraph, the reasonable fees and expenses of counsel shall be at the expense of the Indemnifying Party except where the Indemnifying Party is ultimately deemed not to have been required to provide the time such payments become due indemnity sought by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the The Indemnifying Party has assumed shall not settle any Claim if the defense terms of such settlement (x) require the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry payment of any judgmentamount by the Indemnified Party for which the Indemnified Party is not indemnified hereunder or (y) provide for non-monetary damages, enter into any settlement or otherwise dispose of such Damages, provided it obtains in each case without the prior written consent of the Indemnified Party, which consent shall not to be unreasonably conditioned, withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: Sponsor Services Agreement (Public Sector Pension Investment Board), Sponsor Services Agreement (Pattern Energy Group Inc.)
Indemnification Procedure. i(a) Each The Party shall notify the other in the event it becomes aware of a claim for which entitled to indemnification may be sought pursuant to under this Article 16. In case any proceeding 15 (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify the other Party potentially responsible for such indemnification (the “Indemnifying Party”) within ten (10) Business Days of becoming aware of any claim or claims asserted or threatened against the Indemnified Party which could give rise to a right of indemnification under this Agreement; provided, however, that the failure to give such notice or any delay in such notice shall not relieve the Indemnifying Party of its indemnity obligation hereunder except to the extent that such failure materially prejudices its rights hereunder.
(b) If the Indemnifying Party has acknowledged in writing (to the Indemnified Party the Indemnifying Party’s responsibility for defending such claim, the Indemnifying Party shall have the right to defend, at its sole cost and expense, such claim by all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party; provided, however, that [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. the Indemnifying Party may not enter into any compromise or settlement unless such compromise or settlement includes as an “Indemnification Claim Notice”)unconditional term thereof, the giving by each claimant or plaintiff to the Indemnified Party of a release from all liability in respect of such claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its optionforegoing notwithstanding, the Indemnifying Party may assume not enter into any compromise or settlement of such claim without the defense prior written consent of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (if such compromise or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, settlement would (i) that solely seek monetary damages and impose an injunction or other similar restriction of the Indemnified Party, (ii) as to which impose any financial obligations on the Indemnified Party, and/or (iii) would constitute an admission of guilt or liability by or on behalf of the Indemnified Party.
(c) The Indemnified Party may participate in, but not control, any defense or settlement of any claim controlled by the Indemnifying Party expressly agrees in writing thatpursuant to this Section 15.3 and shall bear its own costs and expenses with respect to such participation; provided, as between however, that the Indemnifying Party shall bear such costs and expenses if counsel for the Indemnifying Party shall have reasonably determined that such counsel may not properly represent both the Indemnifying Party and the Indemnified Party.
(d) The foregoing notwithstanding, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails shall have the right to promptly provide an Indemnification Claim Notice, waive its rights to indemnity under this Agreement and such failure materially prejudices control the defense or settlement thereof to the extent such claim involves an issue or matter that it believe may materially adversely affect the business and/or assets of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that in no event shall any such engagement will waiver be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry construed as a waiver of any judgment, enter into any settlement indemnification rights which such Party may have at law or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedequity.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: License, Development, and Commercialization Agreement, License Agreement (Novacea Inc)
Indemnification Procedure. i(a) Each Any Infinity Indemnified Party shall notify the other in the event it becomes aware of a claim for which or Intellikine Indemnified Party seeking indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party against whom indemnification is sought (the “Indemnifying Party”) in writing (an “Indemnification reasonably promptly after the assertion against the Indemnified Party of any Claim Notice”). The in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay so to notify the Indemnifying Party and shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party shall promptly meet except to discuss how the extent that the Indemnifying Party’s ability to respond defend or resolve such Claim is adversely affected thereby.
(b) Subject to any claims that are the subject matter provisions of such proceeding. At its optionSections 17.3(d) and (e) below, the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice given to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (30) days after receipt of the “Election Time Period”); with notice from the Indemnified Party being obligated of any Claim, to make all reasonable efforts to obtain any assume the defense and handling of such extension) after Claim, at the Indemnifying Party’s receipt sole expense, in which case the provisions of an Indemnification Claim Notice, solely for claims, Section 17.3(c) below shall govern.
(ic) that solely seek monetary damages and (ii) as to which If the Indemnifying Party expressly agrees assumes the defense and handling of such Claim: The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in writing thatconnection with conducting the defense and handling of such Claim, as between and the Indemnifying Party and shall defend or handle the same in consultation with the Indemnified Party, and shall keep the Indemnifying Indemnified Party shall be solely obligated to satisfy and discharge timely apprised of the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”)status of such Claim. The Indemnified Party may assume responsibility for shall not settle such defense if Claim without the Litigation Conditions are not satisfied, by prior written notice to consent of the Indemnifying Party within the Election Time PeriodParty. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the The Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3not, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, not agree to be unreasonably withheld a settlement of such Claim which could lead to liability or delayed.
iv) The Indemnifying Party that has assumed create any financial or other obligation on the defense part of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that for which the Indemnified Party is reached without not entitled to indemnification hereunder, or would involve any admission of wrongdoing on the written consent part of such Indemnifying the Indemnified Party. The Indemnified Party will shall cooperate with the Indemnifying Party, at the request and expense of the Indemnifying Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense. Notwithstanding the foregoing, in the event the Indemnifying Party fails to conduct the defense and handling of any Claim in good faith after having assumed such, then the provisions of Section 17.3(e) below shall govern.
(d) If the Indemnifying Party does not admit give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified Party of any liability with respect toClaim, or settleof the Indemnifying Party’s election to assume the defense and handling of such Claim, compromise or dischargethe provisions of Section 17.3(e) below shall govern.
(e) Unless Section 17.3(c) applies: The Indemnified Party may, any Third Party claim without first offering at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party the opportunity to assume in connection with conducting the defense and handling of such Claim and defend or handle such Claim in such manner as it may deem appropriate; provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the Third status of such Claim and shall not settle such Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party claim in accordance with this Section 16.3shall not settle such Claim without the prior written consent of the Indemnified Party. If the Indemnified Party defends or handles such Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall cooperate with the Indemnified Party will cooperate Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense.
(f) In the event a Claim is based partially on an indemnified claim and partially on a non-indemnified claim or prosecution thereof based partially on a claim indemnified by one Party and will furnish such recordspartially on a claim indemnified by the other Party, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested any payments in connection with such Third Claim shall be apportioned between the Parties in accordance with the degree of cause attributable to each Party.
(g) Nothing in this Section 17 will act to negate any obligation under common law of either Party claim. Such cooperation will include access during normal business hours afforded to mitigate damages with respect to any Claim for which such Party is seeking indemnification from the Indemnifying other Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: Development and License Agreement (Infinity Pharmaceuticals, Inc.), Development and License Agreement (Infinity Pharmaceuticals, Inc.)
Indemnification Procedure. i(a) Each Party shall notify Promptly after the other in the event it becomes aware of a claim for which person seeking indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Section 9.2 (the “Indemnified Party”) has knowledge of any event or circumstance, including any written claim by a third party, that would reasonably be expected to give rise to indemnification under this Article IX (a “Third-Party Claim”) (but in any event not later than 10 Business Days prior to the time any response to the asserted claim is required), the Indemnified Party shall promptly notify deliver to the other Party person from which indemnification is sought (the “Indemnifying Party”) in writing a notice (an a “Indemnification Claim Notice”). The ) setting forth in reasonable detail a description of the matter giving rise to indemnification hereunder, including, if known, the anticipated Losses; provided, however, that any failure or delay by the Indemnified Party in delivering a Claim Notice to the Indemnifying Party and shall not affect the Indemnified Party’s right to indemnification under this Article IX, except to the extent the Indemnifying Party has been materially prejudiced by such failure or delay.
(a) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party shall promptly meet to discuss how to respond to in respect of any claims that are the subject matter of such proceeding. At its optionclaim or in any Claim Notice, the Indemnifying Party, as soon as practicable after receipt by the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Claim Notice, shall deliver to the Indemnified Party within ** (or until a written notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, within the 30-day period beginning on the date of receipt by the Indemnified Party of such written objection, shall attempt to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected, and any agreement reached regarding their respective rights with respect to any of such claims shall be solely obligated to satisfy and discharge set forth in a written agreement signed by the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Periodparties. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility are unable to indemnify agree as to any particular item or items or amount or amounts, then either the Indemnified PartyParty or the Indemnifying Party may submit such dispute to a court of competent jurisdiction in accordance with this Agreement.
ii(b) Upon assuming After receipt by the defense Indemnifying Party of a Claim Notice of a Third Party claim in accordance with this Section 16.3Claim, the such Indemnifying Party shall be entitled to appoint lead and any local counsel in may, at its option, assume the defense of the Third Indemnified Party claim. Should against such claim (including the employment of counsel of the Indemnifying Party assume and continue the defense of a Third Party claimParty’s choosing). The Indemnified Party, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, shall cooperate in its reasonable discretionthe compromise of, will deem appropriate (providedor defense against, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability claim. Except with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld conditioned or delayed.
iv) The , no Indemnifying Party that has shall settle or compromise any Third Party Claim or permit a default judgment or consent to an entry of judgment unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full release of the Indemnified Party with respect to the claim(s) being asserted and (iii) does not contain any admission or finding of wrongdoing on behalf of, or impose a restriction on, the Indemnified Party. Until the Indemnifying Party shall have so assumed the defense of the Third Indemnified Party against such claim following the delivery of such Claim Notice, the Indemnified Party may, but shall not be obligated to, undertake the defense of such claim on behalf of and for the account and risk of the Indemnifying Party, and if such Indemnified Party is entitled to indemnification under this Article IX, all reasonable legal and other expenses reasonably incurred by the Indemnified Party shall be borne by the Indemnifying Party. Any Indemnified Party shall have the right to employ one separate counsel reasonably acceptable to the Indemnifying Party, (other than local counsel) in accordance with this Section 16.3 will any such action or claim and to participate in (but not control) the defense thereof either (I) at its own cost and expense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable or (3) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party (provided that, in the case of clauses (1), (2) or (3), the Indemnifying Party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel, in any settlement action or other disposition claim or group of related actions or claims). No Indemnifying Party shall be liable to indemnify any Indemnified Party for any consent to an entry of any Damages by an Indemnified Party that is reached judgment or any compromise or settlement of any such action or claim effected without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). After any such claim has been filed or initiated, each party shall make available to the opportunity other parties and their attorneys and accountants all pertinent information under its control relating to assume such claim which is made available under the terms of a confidentiality agreement or similar protective measures, and the parties agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party such claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: Share Purchase Agreement (HNA Group Co., Ltd.), Share Purchase Agreement (HNA Group Co., Ltd.)
Indemnification Procedure. i(a) Each Any Infinity Indemnified Party shall notify the other in the event it becomes aware of a claim for which or Intellikine Indemnified Party seeking indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party against whom indemnification is sought (the “Indemnifying Party”) in writing (an “Indemnification reasonably promptly after the assertion against the Indemnified Party of any Claim Notice”). The in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay so to notify the Indemnifying Party and shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party shall promptly meet except to discuss how the extent that the Indemnifying Party’s ability to respond defend or resolve such Claim is adversely affected thereby.
(b) Subject to any claims that are the subject matter provisions of such proceeding. At its optionSections 17.3(d) and (e) below, the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice given to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (30) days after receipt of the “Election Time Period”); with notice from the Indemnified Party being obligated of any Claim, to make all reasonable efforts to obtain any assume the defense and handling of such extension) after Claim, at the Indemnifying Party’s receipt sole expense, in which case the provisions of an Indemnification Claim Notice, solely for claims, Section 17.3(c) below shall govern.
(ic) that solely seek monetary damages and (ii) as to which If the Indemnifying Party expressly agrees assumes the defense and handling of such Claim: The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in writing thatconnection with conducting the defense and handling of such Claim, as between and the Indemnifying Party and shall defend or handle the same in consultation with the Indemnified Party, and shall keep the Indemnifying Indemnified Party shall be solely obligated to satisfy and discharge timely apprised of the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”)status of such Claim. The Indemnified Party may assume responsibility for shall not settle such defense if Claim without the Litigation Conditions are not satisfied, by prior written notice to consent of the Indemnifying Party within the Election Time PeriodParty. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the The Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3not, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, not agree to be unreasonably withheld a settlement of such Claim which could lead to liability or delayed.
iv) The Indemnifying Party that has assumed create any financial or other obligation on the defense part of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that for which the Indemnified Party is reached without not entitled to indemnification hereunder, or would involve any admission of wrongdoing on the written consent part of such Indemnifying the Indemnified Party. The Indemnified Party will shall cooperate with the Indemnifying Party, at the request and expense of the Indemnifying Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense. Notwithstanding the foregoing, in the event the Indemnifying Party fails to conduct the defense and handling of any Claim in good faith after having assumed such, then the provisions of Section 17.3 (e) below shall govern.
(d) If the Indemnifying Party does not admit give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified Party of any liability with respect toClaim, or settleof the Indemnifying Party’s election to assume the defense and handling of such Claim, compromise or dischargethe provisions of Section 17.3(e) below shall govern.
(e) Unless Section 17.3(c) applies: The Indemnified Party may, any Third Party claim without first offering at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party the opportunity to assume in connection with conducting the defense and handling of such Claim and defend or handle such Claim in such manner as it may deem appropriate; provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the Third status of such Claim and shall not settle such Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. The Indemnifying Party claim in accordance with this Section 16.3shall not settle such Claim without the prior written consent of the Indemnified Party. If the Indemnified Party defends or handles such Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall cooperate with the Indemnified Party will cooperate Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense and handling of such Claim with its own counsel and at its own expense.
(f) In the event a Claim is based partially on an indemnified claim and partially on a non-indemnified claim or prosecution thereof based partially on a claim indemnified by one Party and will furnish such recordspartially on a claim indemnified by the other Party, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested any payments in connection with such Third Claim shall be apportioned between the Parties in accordance with the degree of cause attributable to each Party.
(g) Nothing in this Section 17 will act to negate any obligation under common law of either Party claim. Such cooperation will include access during normal business hours afforded to mitigate damages with respect to any Claim for which such Party is seeking indemnification from the Indemnifying other Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 2 contracts
Sources: Development and License Agreement (MEI Pharma, Inc.), Development and License Agreement (Infinity Pharmaceuticals, Inc.)
Indemnification Procedure. iIn the event that any Claim for which a party (an "Indemnifying Party"), would be liable to the another party under this Article 17 (an "Indemnified Party") Each is asserted against or sought to be collected from an Indemnified Party by a third party, the Indemnified Party shall with reasonable promptness notify the other in Indemnifying Party of such Claim, but the event it becomes aware failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party of a claim for which indemnification may be sought pursuant to its obligations under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any 17, except to the extent the Indemnifying Party in respect demonstrates that the defense of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)claim or demand is materially prejudiced thereby. The Indemnifying Party and shall have 30 days from receipt of the above notice from the Indemnified Party shall promptly meet (the "Notice Period") to discuss how to respond to any claims that are notify the subject matter of such proceeding. At its option, Indemnified Party whether or not the Indemnifying Party may desires, at the Indemnifying Party's sole cost and expense, to defend the Indemnified Party against such Claim; provided, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not prejudicial to the Indemnifying Party. If the Indemnifying Party elects to assume the defense of any Third such Claim, the Indemnified Party claim subject shall have the right to indemnification as provided for employ separate counsel at its own expense and to participate in this Section 16.3 by giving written the defense thereof. If the Indemnifying Party elects not to assume the defense of such Claim (or fails to give notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaintduring the Notice Period), if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated shall be entitled to make all reasonable efforts to obtain any assume the defense of such extension) after Claim with counsel of its own choice, at the expense of the Indemnifying Party’s receipt of an Indemnification . If the Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which is asserted against both the Indemnifying Party expressly agrees in writing that, as between and the Indemnified Party and based on the advice of counsel reasonably satisfactory to the Indemnifying Party it is determined that there is a conflict of interest which renders it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility responsible for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify paying separate counsel for the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writingshall not be responsible for paying for more than one separate firm of attorneys to represent all of the Indemnified Parties, or (b) regardless of the number of Indemnified Parties. If the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity elects to assume the defense of the Third Party claim in accordance with this Section 16.3. If such Claim, (i) no compromise or settlement thereof may be effected by the Indemnifying Party chooses to defend or prosecute any Third Party claim, without the Indemnified Party will cooperate Party's written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to full by the Indemnifying Party to, and reasonable retention by (ii) the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all shall have no liability with respect to any compromise or settlement thereof effected without its reasonable out-of-pocket expenses incurred in connection with such cooperationwritten consent (which shall not be unreasonably withheld).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Vanguard Natural Resources, LLC), Purchase and Sale Agreement (Vanguard Natural Resources, LLC)
Indemnification Procedure. i(a) Each Party Subject to the provisions of Section 8.3(d), the indemnified party (the "INDEMNIFIED PARTY") shall notify give the other in indemnifying party (the "INDEMNIFYING PARTY") prompt notice of any Losses (or potential Losses) which may be covered under this Article VIII and such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given). In the event it becomes aware of the notice relates to a claim claim, assertion, action, suit or proceeding by a third party ("THIRD PARTY CLAIM") for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16is provided hereunder, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, permit the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension its insurance company) to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then assertion, action, suit or proceeding and the Indemnifying Party (or its insurance company) may (i) prior to the commencement of any proceedings in connection with such Losses, undertake the negotiation of any resolution of the dispute relating to such Losses, including in accordance with the terms hereof any settlement or release, or (ii) undertake the defense of any proceeding (including any alternative dispute resolution proceeding) regarding such Losses by selecting legal counsel who shall be relieved reasonably acceptable to the Indemnified Party. Failure of the Indemnifying Party to notify an Indemnified Party of its responsibility election to indemnify undertake the Indemnified Party's defense of a Third Party Claim within a reasonable time, but in no event more than thirty (30) days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to undertake the defense of such Third Party Claim. Will▇▇▇ ▇▇▇▇ & ▇allagher, Neal, Gerber & Eise▇▇▇▇▇ ▇▇▇ counsel for the Indemnifying Party's insurance company shall be deemed reasonably acceptable to the Indemnified Party.
ii(b) Upon assuming Provided the Indemnifying Party shall have undertaken the Indemnified Party's defense of a Third Party Claim with legal counsel reasonably acceptable to the Indemnified Party, and shall have so notified the Indemnified Party, the Indemnified Party shall be entitled to participate at its own expense in the aforesaid negotiation or defense of any claim relating to such Losses (subject to reimbursement to the limited extent provided in accordance with this Section 16.38.3(e)), but such negotiations or defense shall be controlled by counsel to the Indemnifying Party.
(c) Except as provided in Section 8.3(e), the Indemnifying Party shall not be entitled liable for payments relating to appoint lead and the resolution of any local counsel dispute or any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not, in the defense of the any such Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claimClaim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgmentjudgment or award, or enter into any settlement, except in either event with the prior consent of each Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. To the extent any Indemnified Party declines to consent to a bona fide offer of settlement or otherwise dispose compromise, the Indemnifying Party shall continue to defend, but the amount of such Damages, on such terms as offer shall be the limit of the Indemnifying Party's liability with respect to such claim, action or proceeding with respect to the Indemnified Party that declined such offer. Notwithstanding the foregoing, the Indemnifying Party shall not, without the Indemnified Party's written consent (which consent may be withheld in its reasonable discretion, will deem appropriate (provided, however that such terms shall the sole and absolute discretion of the Indemnified Party) resolve any dispute or settle or compromise any claim regarding Losses from a Third Party Claim or consent to entry of any judgment which would impose an injunction or other equitable relief upon the Indemnified Party or which does not include a complete and as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability with in respect thereto)of any such Losses.
(d) The failure to give notice of a claim under this Article VIII shall not release the Indemnifying Party of its obligations under this Article VIII, and will transfer except to the extent of the actual harm suffered thereby.
(e) In the event the Indemnifying Party fails after notice from the Indemnified Party to timely undertake negotiation of any dispute or defend, contest or otherwise protect against any claim or suit with respect to a Third Party Claim, and to so notify the Indemnified Party, the Indemnified Party may, but will not be obligated to, defend, contest or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, including reasonable attorneys' and experts' fees, disbursements and all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal paid as a result of such claim prior to or suit or the time compromise or settlement thereof. The Indemnified Party shall cooperate and provide such payments become due by assistance as the Indemnified Party. With respect to all other Damages Indemnifying Party may reasonably request in connection with Third Party claims, where the Indemnifying Party has assumed negotiation of any dispute and the defense of the Third Party claim in accordance with this Section 16.3, matter subject to indemnification and the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of shall reimburse the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested 's reasonable costs incurred thereafter in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded and assistance.
(f) Notwithstanding anything to the Indemnifying Party tocontrary contained herein, and reasonable retention by neither Seller nor the Indemnified Party of, records and information that are reasonably relevant Company shall be entitled to such Third Party claim, and making employees and agents available on indemnification hereunder for any Losses to the extent it has received a mutually convenient basis credit therefor pursuant to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.Article V.
Appears in 2 contracts
Sources: Contribution Agreement (General Growth Properties Inc), Contribution Agreement (General Growth Properties Inc)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of Whenever any Loss is asserted against or incurred by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party TMC Indemnitee or ALZA Indemnitee (the “Indemnified Party”), the Indemnified Party will give written notice thereof (a “Claim”) shall promptly notify the other Party to ALZA or TMC, respectively (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnified Party will furnish to the Indemnifying Party and in reasonable detail such information as the Indemnified Party shall promptly meet may have with respect to discuss how the Claim. The failure to respond give such notice will not relieve the Indemnifying Party of its indemnification obligations under this Agreement, unless the failure to any claims that are the subject matter give such notice is materially prejudicial to an Indemnifying Party’s ability to defend such action.
(b) Within [**] after delivery of such proceeding. At its optionnotification, the Indemnifying Party may assume may, upon written notice thereof to the Indemnified Party, and at its expense, undertake the defense of any Third Claims with attorneys of its own choosing. In the event the Indemnifying Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to does not assume control of such defense, the Indemnified Party within ** may undertake the defense of the Claim.
(or until c) The Party not controlling such time defense may participate therein at its own expense; provided in any applicable extension to appropriately answer any complaint, that if any, but no longer than ** (the “Election Time Period”); with Indemnifying Party assumes control of such defense and the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticereasonably concludes, solely for claimsbased on advice from counsel, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified PartyParty have conflicting interests with respect to such action, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)suit, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such proceeding or claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable responsible for the reasonable fees and expenses of counsel to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense solely in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposetherewith; providedprovided further, however, that in no event will the Indemnifying Party be responsible for the fees and expenses of more than one counsel in any one jurisdiction for all Indemnified Parties.
(d) The Party controlling such engagement defense will keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and will consider recommendations made by the other Party with respect thereto.
(e) The Indemnified Party will not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which will not be at unreasonably withheld. The Indemnifying Party will not consent to entry of any judgment or enter into any settlement that admits fault on the party of the Indemnified Party’s own expense unless (a) , except with the engagement thereof has been specifically requested by consent of the Indemnifying Party in writingIndemnified Party, which such consent will not be unreasonably withheld or (b) delayed. In the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case event the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right refuses to consent to the entry of any judgment, enter into any a judgment or a settlement or otherwise dispose of such Damages, on such terms as for which the Indemnifying Party is solely and entirely responsible and has indicated its sole and entire responsibility in writing to the Indemnified Party, in its reasonable discretionfollowing such refusal, will deem appropriate (provided, however that such terms shall include a complete and unconditional release the liability of the Indemnified Indemnifying Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to fixed at the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry amount of any judgment, enter into any settlement or otherwise dispose of such Damages, money damages provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense proposed judgment or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationsettlement.
Appears in 2 contracts
Sources: Intellectual Property License Agreement (Zosano Pharma Corp), Intellectual Property License Agreement (Zosano Pharma Corp)
Indemnification Procedure. i(a) Each Party shall promptly notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 1612, it being understood and agreed, however, that the failure by an Indemnified Party to give prompt notice of such a claim as provided in this Section 12.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give prompt notice. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 1612, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceedingIndemnification Claim Notice. At its option, the The Indemnifying Party may shall assume direction and control of the defense of any Third Party the claim that is the subject to indemnification as provided for in this Section 16.3 by giving written notice to of the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, Notice (including the right to settle the Claim solely for claims, (imonetary consideration) that solely seek monetary damages and (ii) as using counsel reasonably satisfactory to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, and shall cooperate as requested (at the expense of the Indemnifying Party shall be solely obligated to satisfy and discharge the claim Party) in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii(b) Upon assuming the defense of a Third Party claim in accordance with this Section 16.312.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.312.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.312.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (ai) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (bii) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 12.3 (in which case the Indemnified Party will control the defense), or .
(c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the The Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however however, that the Indemnifying Party shall not agree to any settlement of such terms shall action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), that imposes any liability or obligation on the Indemnified Party or that acknowledges fault by the Indemnified Party or that limits the Indemnified Party’s rights under this Agreement without the prior written consent of the Indemnified Party) and will transfer to the Indemnified Party all amounts which said such Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.312.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided that it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv(d) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 12.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.312.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
(e) The Indemnified Party shall take and shall procure that its Affiliates, Sublicensees, agents, directors, offices and employees take all such reasonable steps and action as are reasonably necessary or as the Indemnifying Party may reasonably require to mitigate any Third Party claim subject to indemnification in accordance with this Section 12.3. Nothing in this Agreement shall or shall be deemed to relieve the Indemnified Party of any common law or other duty to mitigate any losses incurred by it.
Appears in 2 contracts
Sources: Exclusive License Agreement (Gossamer Bio, Inc.), Exclusive License Agreement (Gossamer Bio, Inc.)
Indemnification Procedure. i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may person to be sought indemnified pursuant to ------------------------- this Article 16. In case XI (an "Indemnified Party") agrees to give prompt notice to the indemnifying party of the assertion of any proceeding claim, or the commencement of any suit, action or proceeding, brought against or sought to be collected from such Indemnified Party (including any governmental investigation) shall be instituted involving any each a "Third Party Claim"), in respect of which indemnity may be sought pursuant to by such Indemnified Party under this Article 16, such Party (XI; provided that the “Indemnified Party”) shall omission so to promptly notify the other indemnifying party with respect to a Third Party (Claim brought against or sought to be collected from such Indemnified Party will not relieve the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)indemnifying party from any Liability that it may have to such Indemnified Party under this Article XI except to the extent that such failure has materially prejudiced such indemnifying party with respect to the defense of such Third Party Claim. The Indemnifying Party and If any Indemnified Party shall promptly meet seek indemnity under this Article XI with respect to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any a Third Party claim subject Claim brought against or sought to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until be collected from such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party indemnifying party shall be solely obligated entitled to satisfy participate therein and, to the extent that it wishes, to assume and discharge direct the claim in full (defense and settlement thereof with counsel satisfactory to such Indemnified Party. After notice from the matters described in (i) and (ii), the “Litigation Conditions”). The indemnifying party to an Indemnified Party may of its election to assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices direct the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense and settlement of a Third Party claim in accordance with this Section 16.3Claim brought against or sought to be collected from such Indemnified Party that such indemnifying party is entitled to assume and direct under the terms hereof, the Indemnifying Party indemnifying party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the such Indemnified Party under this Article XI for any legal or other expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysisdefense thereof other than reasonable costs of investigation, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control are both named parties to any such action, claim or demand and representation of both parties by the defense), same counsel would be inappropriate due to actual or (c) potential conflicts of interest between them. Notwithstanding the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfiedforegoing provisions of this Section 11.4, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate indemnifying party shall not (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains A) without the prior written consent of an Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is, or with reasonable foreseeability, could have been a party and indemnity could have been sought hereunder by such Indemnified Party for a Third Party Claim brought against or sought to be collected from such Indemnified Party, unless such settlement includes an unconditional release, in form and substance satisfactory to the Indemnified Party, of such Indemnified Party from all Liability arising out of such proceeding (provided that, whether or not such a release is required to be unreasonably withheld or delayed.
iv) The Indemnifying obtained, the indemnifying party shall remain liable to such Indemnified Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not Article XI in the event that a Third Party Claim is subsequently brought against or sought to be collected from such Indemnified Party) or (B) be liable for any settlement or other disposition of any Damages by Third Party Claim brought against or sought to be collected from an Indemnified Party that is reached effected without the such indemnifying party's written consent of (which shall not be unreasonably withheld), but if settled with such Indemnifying Party. The Indemnified Party will not admit any liability with respect toindemnifying party's written consent, or settle, compromise or discharge, if there is a final judgment for the plaintiff in any such Third Party claim without first offering Claim, such indemnifying party agrees (to the Indemnifying Party the opportunity extent stated above) to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, indemnify the Indemnified Party will cooperate in the defense or prosecution thereof from and will furnish such recordsagainst any loss, information and testimonyliability, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderdamage or expense by reason or such settlement or judgment. The Indemnifying Party will reimburse indemnification required by this Article XI shall be made by periodic payments of the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationamount thereof during the course of the investigation or defense, as and when bills are received or loss, liability, claim, damage or expense is incurred.
Appears in 2 contracts
Sources: Merger Agreement (Unocal Corp), Merger Agreement (Titan Exploration Inc)
Indemnification Procedure. i(a) Each If any Parent Indemnified Party or Selling Parties Indemnified Party, as the case may be (such parties, collectively, the “Indemnified Parties”) intends to seek indemnification pursuant to this Article X, such Indemnified Party shall notify the other in party from whom indemnification is being sought promptly after the event it Indemnified Party becomes aware of the basis of the claim for indemnification in the case of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party that is not a third party claim (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)by providing written notice of such claim to the Indemnifying Party. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, will provide the Indemnifying Party may assume the defense with prompt written notice of any Third Party third party claim subject to in respect of which indemnification as provided is sought. Such notice will specify in reasonable detail the basis for in this Section 16.3 by giving written notice to such claim, and set forth, if known, the facts constituting the basis for such claim. In the case of a third party claim, promptly following such notice, the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which will provide the Indemnifying Party expressly agrees the notice of claim, pleadings or such other information and documents in writing thateach case received from such third party in connection with the making of such third party claim by such third party. The failure to provide such notice, as between information and documents will not affect any rights hereunder except to the extent the Indemnifying Party and shall have been prejudiced as a result of such failure.
(b) If such claim involves a claim by a third party against the Indemnified Party, the Indemnifying Party shall be solely obligated may, within thirty (30) calendar days after receipt of such notice by the Indemnifying Party and upon notice to satisfy the Indemnified Party, assume, through counsel of its own choosing and discharge the claim in full (the matters described in (i) and (ii)at its own expense, the “Litigation Conditions”). The settlement or defense thereof, and the Indemnified Party shall reasonably cooperate with them in connection therewith; provided that the Indemnified Party may assume responsibility for participate in such settlement or defense through counsel chosen by it at the expense of the Indemnified Party; provided, further, that if the Litigation Conditions are not satisfied, Indemnified Party has been advised by written notice to outside counsel that representation by the Indemnifying Party’s counsel of the Indemnifying Party within the Election Time Period. If and the Indemnified Party fails is likely to promptly provide an Indemnification Claim Notice, and present such failure materially prejudices the defense counsel with a conflict of such claiminterest, then the Indemnifying Party shall be relieved pay the reasonable fees and expenses of its responsibility to indemnify the one Indemnified Party.
ii) Upon assuming the defense of a Third Party claim ’s counsel. Notwithstanding anything in accordance with this Section 16.310.3(b) to the contrary, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claimmay not, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, Party (such consent not to be unreasonably withheld withheld, conditioned or delayed.
iv) The Indemnifying Party that has assumed ), settle or compromise any action or consent to the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition entry of any Damages by an Indemnified Party that is reached without the written consent of judgment unless such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settlesettlement, compromise or dischargejudgment (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any Third Party claim without first offering to relief other than monetary damages that are paid in full by the Indemnifying Party and (iii) completely, finally and unconditionally releases the opportunity to assume Indemnified Party in connection with such claim and would not otherwise adversely affect the defense of Indemnified Party. So long as the Third Indemnifying Party is contesting any such claim in accordance with this Section 16.3good faith, the Indemnified Party shall not pay or settle any such claim without the Indemnifying Party’s consent, such consent not to be unreasonably withheld, conditioned or delayed. If the Indemnifying Party chooses to defend or prosecute any Third Party claimis not contesting such claim in good faith, then the Indemnified Party will may conduct and control, through counsel of its own choosing and at the expense of the Indemnifying Party, the settlement (after giving prior written notice of its intention to do so to the Indemnifying Party and obtaining the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed, provided that such consent shall not be required if the Indemnifying Party assumed the defense of a claim but failed to contest such claim in good faith) or defense thereof, and the Indemnifying Party shall cooperate with it in connection therewith. The failure of the Indemnified Party to participate in, conduct or control such defense shall not relieve the Indemnifying Party of any obligation it may have hereunder.
(c) Notwithstanding anything in Section 10.3(b) hereof to the contrary, the Selling Parties’ Representative shall control all proceedings taken in connection with any claim related to Taxes of the Company or any of the Company’s Subsidiaries for any Pre-Closing Tax Period, provided that (i) the Selling Parties’ Representative shall keep Parent informed in respect of all material aspects of such claims and (ii) Parent may also participate in (but not control) such proceedings at its own expense. If Parent elects to participate in any proceedings, all parties agree to cooperate in the defense or prosecution thereof thereof. With respect to any claim related to Taxes of the Company or any of the Company’s Subsidiaries relating to a Straddle Period, the party which would bear the burden of the greater portion of the sum of the adjustment, Tax and will furnish any corresponding adjustments or Taxes that may reasonably be anticipated for future taxable periods shall control such recordsclaim; provided, information however, that the controlling party shall not settle or compromise the proceeding without the prior written consent of the non-controlling party (such consent not to be unreasonably withheld, conditioned or delayed); provided, further, that the controlling party shall keep the non-controlling party informed in respect of all material aspects of such claim and testimony, provide such witnesses including non-controlling party may also participate in such proceedings at its own expense. The payment by any Parent Indemnified Party of any Tax shall not relieve the Selling Parties of their obligation under Section 10.2(a). Notwithstanding any provision to the extent possiblecontrary contained in this Agreement, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested if Parent provides the Selling Parties’ Representative with written notice of a claim in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded respect of Section 10.2(a)(iv) at least 30 days prior to the Indemnifying Party todate on which the relevant Tax is required to be paid by a Parent Indemnified Party, and reasonable retention by within that 30-day period the Selling Parties shall discharge their obligation to indemnify Parent Indemnified Party ofagainst such Tax by making payments to the relevant Taxing Authority or a Parent Indemnified Party, records and information that are reasonably relevant as directed by Parent, in an aggregate amount equal to the amount of such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationTax.
Appears in 2 contracts
Sources: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
Indemnification Procedure. A party making a claim for indemnification under Section 10.1 or Section 10.2 shall be, for the purposes of this Agreement referred to as an “Indemnified Party” and a party against whom such claims are asserted under Section 10.1 or Section 10.2 shall be, for the purposes of this Agreement, referred to as an “Indemnifying Party.” All claims by any Indemnified Party under Section 10.1 or Section 10.2 shall be asserted and resolved as follows:
(a) In the event that (i) Each any action, application, suit, demand, claim or legal, administrative, arbitration or other alternative dispute resolution proceeding, hearing or investigation (each, a “Proceeding”) is asserted or instituted by any Person other than the Parties or their Affiliates which could give rise to damages for which an Indemnifying Party could be liable to an Indemnified Party under this Agreement (such Proceeding, a “Third Party Claim”) or (ii) any Indemnified Party under this Agreement shall notify have a claim to be indemnified by any Indemnifying Party under this Agreement which does not involve a Third Party Claim (such claim, a “Direct Claim” and, together with Third Party Claims, “Indemnification Claims”), the other in the event Indemnified Party shall, promptly after it becomes aware of a claim for which indemnification may be sought pursuant Third Party Claim (and in any event, within thirty (30) days), or facts supporting a Direct Claim, send to this Article 16. In case the Indemnifying Party a written notice specifying the nature of such Proceeding giving rise to any proceeding (including any governmental investigation) shall be instituted involving any such Third Party Claim or Direct Claim in respect reasonable detail in light of which indemnity may be sought pursuant the facts then known to this Article 16, such Party (the “Indemnified Party”, and, if practicable in the Indemnified Party’s reasonable judgment, the amount or estimated amount thereof (which amount or estimated amount shall not be conclusive of the final amount, if any, of such Proceeding) shall promptly notify the other Party (the a “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party , together with copies of all notices and documents (including court papers) served on or received by the Indemnified Party shall promptly meet to discuss how to respond to any claims in the case of a Third Party Claim, provided, however, that are a delay (including a delay beyond the subject matter of such proceeding. At its option, aforementioned thirty (30) day period) in notifying the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (delivering copies of the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extensionaforementioned notices and documents) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which shall not relieve the Indemnifying Party expressly agrees in writing of its obligations under Section 10.1 or Section 10.2 except to the extent that (and only to the extent that, as between ) (x) the Indemnifying Party and the Indemnified Party, applicable Claims Period has expired prior to such notice or (y) the Indemnifying Party shall be solely obligated to satisfy and discharge have been materially prejudiced by the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If failure of the Indemnified Party fails to promptly provide an Indemnification Claim Noticegive such notice or deliver such documents or notices, and such failure materially prejudices the defense of such claim, then in which case the Indemnifying Party shall be relieved of its responsibility obligations under Section 10.1 or Section 10.2 only to indemnify the Indemnified Partyextent of such material prejudice.
ii(b) Upon assuming In the defense event of a Third Party claim in accordance with this Section 16.3Claim, the Indemnifying Party shall be entitled have the right to appoint lead defend against and any local counsel in direct the defense of such Third Party Claim, provided, however, that the Indemnifying Party shall have acknowledged in writing to the Indemnified Party its obligation to indemnify the Indemnified Party as provided hereunder (subject to the limitations set forth herein). If the Indemnifying Party elects to defend against and direct the defense of any Third Party Claim, it shall within thirty (30) days (or sooner, if the nature of the Third Party claim. Should Claim so requires) (the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to “Dispute Period”) notify the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeintent to do so; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in must conduct its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim Claim actively and diligently thereafter in accordance with order to preserve its rights in this Section 16.3, regard. If the Indemnifying Party will does not elect within the Dispute Period to defend against and direct the defense of any Third Party Claim, fails to notify the Indemnified Party of its election during the Dispute Period, contests its obligation to indemnify the Indemnified Party for such damages under this Agreement or fails to actively and diligently conduct its defense of the Third Party Claim, the Indemnified Party may defend against and direct the defense of such Third Party Claim. If the Indemnifying Party elects to defend against and direct the defense of such Third Party Claim and appoint counsel in connection therewith, (i) the Indemnifying Party shall use its commercially reasonable efforts to defend and protect the interests of the Indemnified Party with respect to such Third Party Claim, (ii) the Indemnified Party may participate, at its own expense, in the defense of such Third Party Claim (though not as counsel of record) and (iii) the Indemnified Party shall have authority the right to consent engage separate counsel in connection therewith, but such counsel shall appear as counsel of record for the Indemnified Party and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if, and only if, (x) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable, (y) the Indemnifying Party requests that the Indemnified Party participate in such defense or (z) the Indemnifying Party shall not have engaged counsel within a reasonable time (but not more than thirty (30) days) after notice of the institution of such Third Party Claim. Except as provided in the preceding sentence, nothing in this Section 10.3 shall require the Indemnifying Party to be responsible for the fees and expenses of more than one law firm for one or more Indemnified Parties at any time in connection with the defense against a Third Party Claim. If reasonably requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in defending and contesting any Proceeding giving rise to the Third Party Claim which the Indemnifying Party defends. No Third Party Claim may be settled or compromised, or offered to be settled or compromised, or a default permitted or an entry of any judgmentjudgment consented to (each, enter into any settlement a “Settlement”) (A) by the Indemnified Party without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or otherwise dispose of such Damagesdelayed), provided it obtains or (B) by the Indemnifying Party without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided that, in the case of a consent from an Indemnified Party, such consent shall not be required in the event such Settlement (1) includes a full release of the Indemnified Party and (2) involves only monetary damages that will be paid in full by the Indemnifying Party. Notwithstanding the foregoing, if a Third Party Claim seeks relief other than the payment of monetary damages or if any relief sought would result in the imposition of an Order that would materially restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, then the Indemnified Party alone shall be entitled to contest, defend and resolve (subject, with respect to any Settlement, to obtaining the consent of the Indemnifying Party, such consent not to be unreasonably withheld or delayed.
iv) The such Third Party Claim in the first instance and, if the Indemnified Party does not contest, defend and resolve such Third Party Claim, the Indemnifying Party that has assumed shall then have the defense right to contest and defend (but not enter into a Settlement without the consent of the Indemnified Party, which consent may be withheld in the Indemnified Party’s sole discretion) such Third Party claim in accordance with this Section 16.3 will not be liable for Claim. In the event any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability enters into a Settlement with respect to, or settle, compromise or discharge, to any Third Party claim without first offering Claim in violation of either of the two immediately preceding sentences, such Indemnified Party shall be deemed to have waived all rights against the Indemnifying Party for indemnification under this Section 10.3 with respect to such Third Party Claim.
(c) After any final decision, judgment or award shall have been rendered by a Governmental Entity or arbitrator of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a Settlement or arbitration shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement with respect to an Indemnification Claim hereunder, the Indemnified Party shall forward to the Indemnifying Party the opportunity to assume the defense notice of the Third Party claim in accordance with this Section 16.3. If any sums due and owing by the Indemnifying Party chooses pursuant to defend or prosecute any Third this Agreement with respect to such matter and the Indemnifying Party claimshall make prompt payment thereof by wire transfer in immediately available funds within five (5) Business Days after the date of such notice or, if required earlier, pursuant to the terms of the agreement reached with respect to the Indemnification Claim.
(d) In the event of a Direct Claim, the Indemnifying Party shall notify the Indemnified Party will cooperate in within thirty (30) days of receipt of a Claim Notice whether the defense or prosecution thereof Indemnifying Party disputes such Indemnification Claim. From and will furnish such after the delivery of a Claim Notice under this Agreement, at the reasonable request of either Party, each Party shall grant the other and its Agents reasonable access to the books, records, information Agents and testimony, provide properties of such witnesses including Party to the extent possiblereasonably related to the matters to which the Claim Notice relates. All such access shall be granted during normal business hours and shall be granted under conditions which will not unreasonably interfere with the business and operations of such Party. The Party requesting access will not, former employees and attend such conferencesshall use its reasonable best efforts to cause its Agents not to, discovery proceedings, hearings, trials and appeals as may be reasonably requested use (except in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded Claim Notice) or disclose to any third person other than the Indemnifying Party to, and reasonable retention Party’s Agents (except as may be required by applicable Law) any information obtained pursuant to this Section 10.3(d) which is designated as confidential by the Indemnified other Party. Notwithstanding the foregoing, neither Party of, records and shall have access to (i) any medical or other employee information that are reasonably relevant is contained in the personnel records of the other Party or its Affiliates and the disclosure of which would subject that Party or such Affiliate to such Third Party claimrisk of liability, and making employees and agents available on a mutually convenient basis to provide additional (ii) any information and explanation which is subject of any material provided hereunder. The Indemnifying attorney-client or other privilege or immunity from disclosure in favor of the other Party will reimburse or its Affiliates or (iii) any information the Indemnified disclosure of which would cause the other Party for all or any of its reasonable out-of-pocket expenses incurred in connection with such cooperationAffiliates to violate applicable Law.
(e) Notwithstanding the foregoing, any Tax Proceeding shall be governed by Section 7.7(f) and not by the provisions of this Section 10.3.
Appears in 2 contracts
Sources: Merger Agreement (Fresenius Medical Care AG & Co. KGaA), Agreement and Plan of Merger (Fresenius Medical Care AG & Co. KGaA)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which The party seeking indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Agreement (the “"Indemnified Party”") shall promptly notify the other Party party from which indemnification is being sought (the “"Indemnifying Party”") of the facts and circumstances upon which the Indemnified Party intends to base a claim for indemnification hereunder ("Notices"). Notice shall in writing all events be considered prompt if given (an “Indemnification Claim Notice”)a) no later than 30 days after the Indemnified Party learns of the facts upon which it will claim such indemnification or (b) if earlier, in sufficient time to allow the Indemnifying Party to exercise its rights pursuant to this Section 9.03; provided, however, that the failure to provide such Notice of claims promptly (so long as a notice of claims is given before the date on which the applicable representation or warranty ceases to survive) shall not affect the obligations of the Indemnifying Party hereunder except to the extent the Indemnifying Party is prejudiced thereby. The Indemnifying Party and Indemnified Party shall promptly meet have the right, at its own cost, to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume participate jointly in the defense of any Third Party claim subject to indemnification as provided for third-party claim, demand, lawsuit or other proceeding in this Section 16.3 by giving written notice to connection with which the Indemnified Party has claimed indemnification hereunder, and may elect to take over the defense of such claim within ** (or until such time provided in any applicable extension 10 days following Notice thereof upon its written unconditional acknowledgment of its obligation to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with indemnify the Indemnified Party being obligated with respect to make all reasonable efforts such claim; provided, however, that Sellers shall not be permitted to obtain take over the defense of any claim brought by any customer or supplier of the Business against any member of Buyer's Indemnified Group for which indemnification is available pursuant to this Article IX, and such extension) after member of Buyer's Indemnified Group shall defend such claim; provided, further, that such member of Buyer's Indemnified Group shall not settle or otherwise dispose of such claim without the Indemnifying Party’s receipt consent of an Indemnification Claim NoticeSellers, solely for claims, (i) that solely seek monetary damages and (ii) as to which consent shall not be unreasonably withheld or delayed. If the Indemnifying Party expressly agrees in writing thatmakes such an election, (x) it shall keep the Indemnified Party informed as between to the Indemnifying Party status of such matter and shall send promptly copies of all pleadings to the Indemnified Party, (y) with respect to any issue involved in such claim, it shall have the Indemnifying Party sole right, with respect to claims or portions of claims seeking monetary damages only, to settle or otherwise dispose of such claim on such terms as it, in its sole discretion, shall be solely obligated to satisfy and discharge deem appropriate; provided, however, that the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If consent of the Indemnified Party fails to promptly provide an Indemnification Claim Noticethe settlement or disposition shall be required if such settlement or disposition shall result in any liability to, equitable relief against or adverse business effect on the Indemnified Party, which consent shall not be unreasonably withheld or delayed, and such failure materially prejudices (z) the Indemnified Party shall have the right to participate jointly in the defense of such claim, then but shall do so at its own cost not subject to reimbursement under Section 9.02. If the Indemnifying Party shall be relieved of its responsibility does not elect to indemnify the Indemnified Party.
ii) Upon assuming take over the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party third-party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by shall have the right to contest, compromise or settle such Indemnified Party after claim in the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel exercise of its choice for such purposereasonable judgment; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by consent of the Indemnifying Party in writing, to any compromise or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on claim shall be required if such terms as compromise or settlement shall result in any liability to the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms which consent shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv(b) The Indemnifying Party that has assumed Notwithstanding the defense provisions of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability 9.03(a), with respect to, to any third-party claim or settle, compromise or discharge, any Third Party claim without first offering to demand that the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimis defending, the Indemnified Party will cooperate in shall have the defense or prosecution thereof right to retain separate counsel to represent it and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, shall pay the fees and reasonable retention by expenses of such separate counsel if there are conflicts that make it reasonably necessary for separate counsel to represent the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Intellesale Com Inc), Purchase and Sale Agreement (Applied Cellular Technology Inc)
Indemnification Procedure. i(a) Each Party shall notify Promptly after the other in incurrence of any Damages by the event it becomes aware of a claim for which party seeking indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party hereunder (the “Indemnified Party”), including, without limitation, any claim by a third party described in Section 9.4(d) hereof, which might give rise to indemnification hereunder or the discovery of any facts or circumstances that the Indemnified Party believes may result in an indemnification claim hereunder, the Indemnified Party shall promptly notify deliver to the other Party party from which indemnification is sought (the “Indemnifying Party”) in writing and all Sellers a certificate (an the “Indemnification Claim NoticeCertificate”). The , which Claim Certificate shall:
(i) state that the Indemnified Party has paid or properly accrued Damages, or anticipates that it shall incur liability for Damages for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail each individual item of Damages included in the amount so stated to the extent known, the date such item was paid or properly accrued (if applicable), the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty or breach of covenant or claim to which each such item is related and the computation of the amount, if reasonably capable of computation to which such Indemnified Party claims to be entitled hereunder; provided, however, that the failure to deliver such Claim Certificate shall not relieve the Indemnifying Party and of its obligations hereunder except to the extent such failure shall have prejudiced the Indemnifying Party.
(b) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party shall promptly meet to discuss how to respond to in respect of any claim or claims that are the subject matter of such proceeding. At its optionspecified in any Claim Certificate, the Indemnifying Party may assume shall, within 10 Business Days after receipt by the defense Indemnifying Party of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Claim Certificate, deliver to the Indemnified Party within ** (or until a written notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified PartyParty shall, within the 10 Business Day period beginning on the date of receipt by the Indemnified Party of such written objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute to arbitration pursuant to Section 10.7.
(c) Claims for Damages specified in any Claim Certificate to which an Indemnifying Party shall not object in writing within 10 Business Days of receipt of such Claim Certificate, claims for Damages covered by a memorandum of agreement of the nature described in Section 9.4(b) and claims for Damages the validity and amount of which have been the subject of a Final Determination under Section 10.7, are hereinafter referred to, collectively, as “Agreed Claims.” Within 10 Business Days of the determination of the amount of any Agreed Claims, subject to the limitations of this Article IX, the Indemnifying Party shall pay to the Indemnified Party an amount equal to the Agreed Claim by cashier’s check or wire transfer to the bank account or accounts designated in writing by the Indemnified Party not less than one Business Day prior to such payment. Any such amount required to be solely obligated paid by Sellers shall be paid from the Escrow Amount, to satisfy and discharge the extent available.
(d) Promptly after the assertion by any third party of any claim against any Indemnified Party that in full (the matters described in (i) and (ii), the “Litigation Conditions”). The reasonable judgment of such Indemnified Party may assume responsibility result in the incurrence by such Indemnified Party of Damages for which such defense if the Litigation Conditions are not satisfiedIndemnified Party would be entitled to indemnification pursuant to this Agreement, by written notice such Indemnified Party shall deliver to the Indemnifying Party within a written notice describing in reasonable detail such claim and such Indemnifying Party may, at its option, assume the Election Time Period. If defense of the Indemnified Party fails against such claim (including the employment of counsel, who shall be reasonably satisfactory to promptly such Indemnified Party) at such Indemnifying Party’s expense. Any failure on the part of the Indemnified Party to provide an Indemnification Claim Notice, and prompt notice shall not limit any of the obligations of the Indemnifying Party (except to the extent such failure materially prejudices the defense of such claim). Any Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, then but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party shall be relieved of its responsibility to indemnify Party. Notwithstanding the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3foregoing, the Indemnifying Party shall not be entitled to appoint lead assume such control, and any local counsel shall be responsible for the fees and expenses of the Indemnified Party’s counsel, if (i) the Indemnifying Party shall have failed, within 15 Business Days after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim or to notify the Third Indemnified Party in writing that it shall assume the defense of such claim. Should , (ii) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (iii) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party assume and continue such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to, or the assertion of which would be adverse to the interests of, the Indemnified Party, or (iv) the Indemnified Party shall have been advised in writing by counsel that the assumption of such defense by the Indemnifying Party would be inappropriate due to an actual or potential conflict of interest (provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel). No Indemnifying Party shall be liable to indemnify any Indemnified Party for any settlement of any such action or claim effected without the consent of the Indemnifying Party, but if settled with the written consent of the Indemnifying Party, or if there be a Third final judgment for the plaintiff in any such action, the Indemnifying Party claimshall indemnify and hold harmless each Indemnified Party from and against any loss or liability by reason of such settlement or judgment, except as otherwise subject to the limitations set forth in this Article IX. If the Indemnifying Party shall assume the defense of any claim in accordance with the provisions of this Section 16.39.4(d), the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains obtain the prior written consent of the Indemnified Party, Party (which shall not to be unreasonably withheld or delayed.
ivwithheld) The Indemnifying before entering into any settlement of such claim if the settlement does not release the Indemnified Party that has assumed from all liabilities and obligations with respect to such claim, the defense settlement is in excess of the Third Party claim maximum liability set forth in accordance with this Section 16.3 will not be liable for any 9.2 or 9.3, as applicable, or the settlement imposes injunctive or other disposition of any Damages by an equitable relief against the Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to and the Indemnifying Party each agrees to fully cooperate in all matters covered by this Section 9.4(d), including, as required, the opportunity to assume furnishing of books and records, personnel and witnesses and the execution of documents, in each case as necessary for any defense of the Third Party such third party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including at no cost to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information other party (provided that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket pockets expenses of the Indemnified Party incurred in connection with such cooperationthe foregoing shall be considered part of Damages hereunder).
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Envestnet, Inc.)
Indemnification Procedure. i) Each The Indemnified Party shall notify the other in Indemnifying Party of any event that might entitle the event it becomes aware Indemnified Party to indemnification, as a result of a claim for which indemnification may be sought pursuant to Loss under this Article 16Agreement (“Claim”). In case any proceeding (including any governmental investigation) Such notification shall be instituted involving any made within 5 Business Days of the date a Claim comes to the attention of the Indemnified Party as the Indemnified Party may deem expected to cause a Loss, provided that, in respect of which indemnity may be sought pursuant to this Article 16case said Loss is based on a legal action or proceeding brought by a third-party (“Third Party Claim”), such the Indemnified Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing the Indemnifying Party no later than the date that is the end of the first one third (an 1/3) of the legal timeframe to file defenses or counterclaims against the Third Party Claim in question (“Indemnification Claim NoticeDefense”). The Indemnifying Party and Indemnified Party failure to provide such notice for indemnification within the aforementioned periods shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, not relieve the Indemnifying Party from any obligations it may assume have under this Section 4 with respect to such Loss, except and only to the defense extent that the failure to so notify the Indemnifying Party results in the forfeiture by the Indemnifying Party of material rights or defenses that it would otherwise have.
4.2.1. The Indemnifying Party may conduct the Defense in any Third Party claim subject Claim through counsel of its choice, if it so elects by sending a written notification to indemnification as provided for in this Section 16.3 by giving written notice that effect to the Indemnified Party by the Indemnifying Party within ** two (or until 2) Business Days after receipt of the notification described in Section 4.2 above; provided, that such time provided in any applicable extension notification must include an acknowledgment that the Indemnifying Party is obligated to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with indemnify the Indemnified Party being obligated with respect to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Third Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, Claim. The Defense conducted by the Indemnifying Party shall be solely obligated made in cooperation with the Indemnified Party, which shall be informed reasonably in advance of any major step of proceedings and which may appoint (at its own cost) any legal advisor in addition to satisfy and discharge the claim one(s) appointed by the Indemnifying Party. The Indemnified Party shall fully cooperate with the Indemnifying Party in full the conduction of the Defense (at the matters described in (i) and (iiIndemnifying Party’s cost), providing access to all information and documentation reasonably required and necessary for the “Litigation Conditions”)preparation and conduction thereof. The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of only settle the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claims without the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to if the Indemnifying Party refuses to conduct the opportunity to assume the defense Defense of the such a Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderClaim. The Indemnifying Party will reimburse may only settle the Third Party Claims if the Indemnifying Party accepts and undertakes the conduct of the Defense of such Third Party Claim and (i) the Indemnified Party for all its reasonable out-of-pocket expenses incurred consents in connection with writing to such cooperationsettlement or (ii) such settlement includes a full release of the Indemnified Party, no admission of wrongdoing by the Indemnified Party, and no restriction or obligation of any type on the Indemnified Party.
Appears in 2 contracts
Sources: Share Purchase Agreement (Intercontinentalexchange Inc), Share Purchase Agreement (Intercontinentalexchange Inc)
Indemnification Procedure. i(a) Each If a Party intends to assert a Purchaser Claim or a Seller Claim (a Purchaser Claim or a Seller Claim being hereafter referred to as an “Indemnity Claim”), the Party intending to assert an Indemnity Claim shall notify provide the other Party from whom indemnification is sought with written notice of such Indemnity Claim in accordance with Section 7.5(c) within 30 days after becoming aware of the facts giving rise to such Indemnity Claim. At the time the Indemnity Claim is made and thereafter, any Party asserting the Indemnity Claim shall provide the Party against which the Indemnity Claim is asserted with copies of any materials in its possession describing the facts or containing information providing the basis for the Indemnity Claim. If the Indemnity Claim involves a claim by a third party (a “Third Party Indemnity Claim”), the Party against which the Third Party Indemnity Claim is asserted may assume at its expense the defense of the claim by the third party, provided, that such Party against which the Third Party Indemnity Claim is asserted agrees in writing with respect to such Third Party Indemnity Claim that it is obligated hereunder to indemnify and hold any Party asserting the Third Party Indemnity Claim harmless in accordance with the terms of this Article VII; and provided, further, that the Party asserting the Third Party Indemnity Claim shall be entitled to participate in the event it becomes aware defense of a such claim for which indemnification may be sought pursuant to this Article 16at its own expense. In case any proceeding (including any governmental investigation) shall be instituted involving The failure of any Party in respect against which the Third Party Indemnity Claim is asserted to assume the defense of which indemnity may be sought pursuant to any such claim shall not affect any indemnification obligation under this Article 16, such Party Agreement.
(the b) No indemnified party (an “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to may settle or compromise any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgmentjudgment with respect to which indemnification is being sought hereunder without the prior written consent of the party from whom indemnification is being sought (an “Indemnifying Party”), enter into any settlement or otherwise dispose unless (i) the Indemnifying Party fails to assume and maintain the defense of such Damagesclaim pursuant to this Article VII and (ii) such settlement, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete compromise or consent includes and unconditional release of the Indemnified Indemnifying Party and its officers, directors, employees and Affiliates from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal arising out of such claim prior to the time such payments become due by the Indemnified Partyclaim. With respect to all other Damages in connection with Third Party claims, where the An Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3may not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (x) such settlement, compromise or consent includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not to be unreasonably withheld contain any admission or delayedstatement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of its Affiliates.
iv(c) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages Any written notice sent by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the an Indemnifying Party the opportunity pursuant to assume the defense Section 7.5(a) shall include (i) a detailed description of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses Indemnity Claim being made, (ii) copies of all relevant documentation relating to defend or prosecute any Third Party such claim, and (iii) the basis for indemnification, including without limitation specific provisions of this Agreement under which the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including believes it is entitled to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationindemnification.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Integrated Management Information, Inc.), Asset Purchase Agreement (Integrated Management Information, Inc.)
Indemnification Procedure. i(a) Each Party shall notify Any party seeking indemnification (the "Indemnified Party") from any other in party (the event it becomes aware of a claim for which indemnification may be sought "Indemnifying Party") with respect to any claim, demand, action, proceeding or other matter (the "Claim") pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) Agreement shall promptly notify the other Indemnifying Party (the “Indemnifying Party”) in writing of the existence of the Claim, setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Party's right to indemnification.
(an “Indemnification b) In the event that any third party notifies any Indemnified Party with respect to any matter which may give rise to a Claim Notice”). The for indemnification against the Indemnifying Party and under this Agreement, then the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, notify the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeClaim; provided, however, that such engagement will be at no delay on the part of the Indemnified Party’s own expense Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (aand then solely to the extent) the engagement thereof has been specifically requested Indemnifying Party is prejudiced by such failure to give notice. The Indemnifying Party, upon waiver of its right to contest the liability for which indemnification is being sought and demonstration by the Indemnifying Party of its financial ability to satisfy any resulting judgment to the reasonable satisfaction of the Indemnified Party, shall have the right to assume defense of the Claim if notice is given to the Indemnified Party within ten (10) days after receipt of notice of such Claim. If the Indemnifying Party assumes defense of the Claim as provided in writingthe preceding sentence, then:
(i) the Indemnifying Party will diligently defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel (a) to the extent the Indemnified Party concludes reasonably based upon advice of counsel that a conflict of interest exists between the Indemnified Party and Indemnifying Party or (b) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party has failed and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to assume and actively further the defense and engage counsel in accordance with this Section 16.3 Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party, but the assertion of which would be adverse to the interest of the Indemnified Party;
(in which case iii) the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the matter without the written consent of such Damages, on such terms as the Indemnifying PartyParty (not to be withheld or delayed unreasonably; it being understood and agreed that failure to consent to a judgment or settlement that provides for relief other than monetary damages or does not provide an unconditional release of the Indemnifying Party from liability shall not be deemed unreasonable); and
(iv) The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement, in its reasonable discretion, will deem appropriate without the written consent of the Indemnified Party (provided, however not to be withheld or delayed unreasonably; it being understood and agreed that such terms shall include failure to consent to a complete and judgment or settlement that provides for relief other than monetary damages or does not provide an unconditional release of the Indemnified Party from all liability with respect theretoshall not be deemed unreasonable), and will transfer to .
(c) If no Indemnifying Party notifies the Indemnified Party all amounts which said within ten (10) days after the Indemnified Party will has given notice of the matter that the Indemnifying Party is assuming the defense thereof, then the Indemnified Party may defend against, or enter into any settlement with respect to, the matter in any manner it reasonably may deem appropriate, without prejudice to any of its rights hereunder.
(d) The Indemnified Party shall be liable entitled to pay pursuant reimbursement of reasonable expenses included in Damages with respect to any Claim (including, without limitation, the cost of defense, preparation and investigation relating to such settlement or disposal of Claim) as such claim prior to the time such payments become due expenses are incurred by the Indemnified Party. With respect ; provided, however, that the Indemnified Party shall undertake to all other Damages in connection with Third Party claims, where repay any amounts arising solely from the Indemnifying Party has assumed the defense fault of such Indemnified Party.
(e) The rights and remedies of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry Purchaser Indemnitees under Article IX shall not be limited or otherwise affected by or as a result of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect information furnished to, or settle, compromise any investigation made by or dischargeknowledge of, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend Purchaser Indemnitees or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense of their respective representatives or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationagents.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Photoloft Com), Stock Purchase Agreement (Intellect Capital Group LLC)
Indemnification Procedure. i(a) Each Promptly following receipt by a Purchaser Indemnified Party shall notify or Seller Indemnified Party, as the other in the event it becomes aware of a claim for which indemnification case may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) of notice by a third party (including any Governmental Body) of any complaint, dispute or claim or the commencement of any audit, investigation, action or proceeding with respect to which such Indemnified Party may be entitled to indemnification pursuant hereto (a “Third Party Claim”), such Indemnified Party shall promptly notify provide written notice thereof to the other Party party obligated to indemnify under this Agreement (the “Indemnifying Party”) ); provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from Liability hereunder with respect to such Third Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party results in writing (an “Indemnification the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such Third Party Claim Notice”)or otherwise prejudices the Indemnifying Party. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** twenty (or until 20) days thereafter to assume and control the defense of such time provided in any applicable extension Third Party Claim, including the employment of counsel reasonably satisfactory to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any and the payment of the fees and disbursements of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, counsel; provided that if (i) that solely seek monetary damages and (ii) as to which there is an actual conflict of interest arising from the Indemnifying Party expressly agrees in writing that, as between joint representation of the Indemnifying Party and the Indemnified Party, Parties by the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify same counsel which would prejudice the Indemnified Party.
, (ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and is with respect to engage counsel of its choice for such purpose; provideda criminal proceeding, howeveraction, that such engagement will be at indictment, allegation or investigation against the Indemnified Party’s own expense unless , (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where if the Indemnifying Party has assumed the defense of a Third Party Claim but has not diligently continued to prosecute or defend such Third Party Claim, and has not cured such deficiency in the prosecution or defense of such Third Party Claim within thirty (30) days of receipt of written notice of such deficiency by the Indemnified Party, or (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party; then the Indemnified Party may assume and control the prosecution or defense of the Third Party Claim, and (A) the Indemnifying Party shall not be entitled to assume the defense of any such claim or action, (B) the Indemnified Party shall have the right to conduct and control the defense of such action or claim with counsel of its choosing and the reasonable legal and other expenses incurred by the Indemnified Party shall be borne by the Indemnifying Party, and (C) the Indemnifying Party shall be bound by any defense or settlement that the Indemnified Party shall make in accordance with this Section 16.3respect to such action or claim. If notice is given to an Indemnifying Party of the commencement of any Third Party Claim and the Indemnifying Party does not, within thirty (30) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party. Subject to the foregoing provisions in this Section 11.3(a), in any Third Party Claim for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such Third Party Claim, shall have authority the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the defense of which it is maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(b) No Indemnified Party may settle or compromise any Third Party Claim or consent to the entry of any judgmentjudgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), enter into any settlement or otherwise dispose unless the Indemnifying Party fails to assume and maintain diligently the defense of such DamagesThird Party Claim pursuant to Section 11.3(a). An Indemnifying Party may not, provided it obtains without the prior written consent of the Indemnified Party, settle or compromise any Third Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (i) includes an unconditional release of the Indemnified Party and its officers, shareholders, members, employees and affiliates from all Liability arising out of, or related to, such Third Party Claim, (ii) does not contain any admission or statement suggesting any wrongdoing or Liability on behalf of the Indemnified Party, and (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s affiliates and (iv) in the case of a Third Party Claim related to be unreasonably withheld or delayedTaxes, could not cause an increase in the Taxes of Purchaser for any taxable period beginning after the Closing Date.
iv(c) The Indemnifying Party that has assumed In the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by event an Indemnified Party that is reached without the claims a right to payment pursuant hereto with respect to any matter not involving a Third Party Claim (a “Direct Claim”), such Indemnified Party shall send written consent notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). Such Notice of Claim shall specify the basis for such Direct Claim. The failure by any Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering so to notify the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If shall not relieve the Indemnifying Party chooses from any Liability that it may have to defend such Indemnified Party with respect to any Direct Claim made pursuant to this Section 11.3(c), except to the extent such failure has prejudiced the Indemnifying Party, it being understood that Notices of Claim in respect of a breach of a representation or prosecute any Third warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 11.4. In the event the Indemnifying Party claim, does not notify the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish within thirty (30) days following its receipt of such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to Notice of Claim that the Indemnifying Party todisputes its Liability to the Indemnified Party under this Article 11 or the amount thereof, and reasonable retention the Direct Claim specified by the Indemnified Party of, records and information that are reasonably relevant to in such Third Party claim, and making employees and agents available on Notice of Claim shall be conclusively deemed a mutually convenient basis to provide additional information and explanation Liability of any material provided hereunder. The the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationunder this Article 11.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of In order to make a claim for which indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any VII, a Buyer Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such or a Seller Indemnified Party (the each, a “Indemnified Party”) shall promptly notify must deliver written notice of such claim to the other Party or Parties from whom it seeks indemnification (the “Indemnifying Party”) Party”)prior to the expiration of any applicable survival period set forth in writing Section 7.1 (an “Indemnification Claim Notice”in which event the claim shall survive until resolved). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to If any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving third party provides written notice to the Indemnified Party within ** with respect to any matter which may give rise to a claim for indemnification (or until a “Third Party Claim”) against the Indemnifying Party under this Article VII, then the Indemnified Party shall notify the Indemnifying Party reasonably promptly thereof in writing; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder except and solely to the extent that the Indemnifying Party is actually and materially prejudiced thereby (with the Indemnifying Party bearing the burden of establishing such time provided actual and material prejudice). All notices given pursuant to this Section 7.4(a) shall describe with reasonable specificity, based on the information made available at such time, the nature of the claim, the amount of the claim (to the extent then known) and the basis of the Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in any applicable extension to appropriately answer any complaintaccordance with Section 7.4(a) (other than a notice of a Third Party Claim against the Indemnified Party, if anyin which case Section 7.4(c) below shall apply), but no longer than ** the Indemnifying Party shall have thirty (30) days from the date it receives such notice (the “Election Time Dispute Period”); with the Indemnified Party being obligated ) to make all reasonable efforts to obtain any such extension) after investigation of the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which claim. If the Indemnifying Party expressly agrees in writing that, as between disagrees with the Indemnifying Party and validity or amount of all or a portion of such claim made by the Indemnified Party, the Indemnifying Party shall be solely obligated deliver to satisfy and discharge the claim in full Indemnified Party written notice thereof (the matters described “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Indemnified Party within the Dispute Period or the Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Indemnifying Party (such claim, an “Approved Indemnification Claim”). Each Approved Indemnification Claim shall be paid no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) The Indemnifying Party may participate in (ibut not control) and (ii), the “Litigation Conditions”)defense of any Third Party Claim at its own expense. The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall render to each other such assistance as may reasonably be relieved required of its responsibility each other in order to indemnify ensure proper and adequate defense of any Third Party Claim subject to this Section 7.4. To the Indemnified Party.
ii) Upon assuming extent that the Indemnifying Party does not participate in the defense of a particular Third Party claim in accordance Claim, the Indemnified Party shall keep the Indemnifying Party reasonably informed of all material developments and events relating to such Third Party Claim. No Indemnified Party shall settle or consent to judgment with this Section 16.3respect to any Third Party Claim without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that, that such written consent of the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by required if such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit settlement or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include judgment includes a complete full and unconditional release of the Indemnified Indemnifying Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available Claim without any requirement by or on a mutually convenient basis to provide additional information and explanation behalf of any material provided hereunder. The the Indemnifying Party will reimburse to make any payment (including, without limitation, any portion of the Indemnified Party for all its reasonable out-of-pocket expenses incurred applicable Seller Retention Amount) or to take, or cease to take, any other action other than executing and delivering such release in connection with such cooperationform and substance reasonably satisfactory to the Indemnifying Party. Notwithstanding the foregoing, the control, defense and resolutions of Tax Contests shall be governed by Section 6.6(d).
Appears in 1 contract
Indemnification Procedure. i(a) Each Any indemnified Party shall notify the other in the event it becomes aware of a claim for which seeking indemnification may be sought pursuant to under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16each, such Party (the an “Indemnified Party”) shall shall, within the relevant limitation period provided in Section 9.1, promptly notify upon discovering or identifying the other underlying reasons giving rise to a claim for indemnification give the indemnifying Party or Parties (collectively, the “Indemnifying Party”) in writing written notice (an a “Indemnification Claim Notice”) describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in the Claim Notice the amount or method of computation of the amount of such claim and a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided, that a Claim Notice in respect of any action at law or in equity by or against a third party as to which indemnification will be sought shall be given promptly after the action or suit is commenced and the Indemnified Party shall not make any admissions, enter into any settlement agreements or otherwise make any compromise with such third party prior to the expiration of the thirty (30) day period set forth in Section 9.4(b) below or thereafter in the event the Indemnifying Party has given notice of its election to take over the defense in accordance with Section 9.4(b) below and for so long as such Party diligently pursues such defense (it being agreed that, in the event the Indemnifying Party does not make such election or ceases to diligently pursue such defense, the provisions of Section 9.4(c). ) shall apply).
(b) The Indemnifying Party and Indemnified Party shall promptly meet have the right, at its own cost, to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume participate jointly in the defense of any Third claim or demand in connection with which the Indemnified Party has claimed indemnification hereunder, and, if the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such claim subject or demand, may elect to indemnification as provided for in this Section 16.3 take over the defense of such claim or demand through counsel of its own choosing by giving written notice to so notifying the Indemnified Party within ** thirty (30) days of receipt of the Indemnified Party’s notice of such claim or until demand. If the Indemnifying Party makes such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** an election:
(the “Election Time Period”); with i) it shall keep the Indemnified Party being obligated reasonably informed as to make the status of such matter and shall promptly send copies of all reasonable efforts pleadings to obtain any such extension) after the Indemnifying Indemnified Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and ;
(ii) as with respect to which any issue involved in such claim or demand, it shall have the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated sole right to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense settle or otherwise dispose of such claimclaim or demand on such terms as it, then the Indemnifying Party in its sole discretion, shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposedeem appropriate; provided, however, that the consent, which consent shall be in its sole discretion, of the Indemnified Party to the settlement or disposition of any claim or demand shall be required if such engagement will be settlement or disposition shall result in any liability (which is not paid at the time of settlement by the Indemnifying Party) to, or equitable relief against, the Indemnified Party’s own expense unless ; and
(aiii) the engagement thereof has been specifically requested Indemnified Party shall have the right to participate jointly in the defense of such claim or demand, but shall do so at its own cost not subject to reimbursement under Section 9.2 or Section 9.3.
(c) If the Indemnifying Party does not elect to take over the defense of a claim or demand, the Indemnified Party shall have the right to contest, compromise or settle such claim or demand in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnifying Party to any compromise or settlement of such claim or demand shall be required, which consent shall not be unreasonably withheld or delayed. The costs of defense and any settlement reached shall be borne by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with the foregoing.
(d) The Parties agree that any payment by Seller to Purchasers under this Section 16.3 Article 9 shall be construed and deemed (in which case i) between Seller and Purchasers as a reduction of the Indemnified Party will control the defensePurchase Price, and (ii), or if payment is made directly to the relevant Owner, between Purchasers and the relevant Owner as a contribution (cEinlage) by Purchasers into the Indemnifying Party no longer satisfies relevant Owner. Payments under this Article 9 by Purchasers to Seller shall be construed and deemed accordingly and to the Litigation Conditionscontrary.
iii(e) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claimsclaims for indemnification arising from the breach or inaccuracy of Seller’s obligations pursuant to Section 7.1 or Section 7.3, where the Indemnifying Party has assumed Purchasers shall, prior to pursuing such indemnification, seek any applicable recourse under the defense Insurance Policies.
(f) The foregoing provisions of the Third Party claim in accordance with this Section 16.39.4 shall not apply to any Warranty Claims, the Indemnifying Party will have authority other than those arising out of fraud or willful misconduct, such inapplicable Warranty Claims being subject to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedSection 9.5.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Membership Interests Purchase and Sale Agreement (Hines Global REIT, Inc.)
Indemnification Procedure. i) Each Party shall notify Claims for indemnification under this Agreement (other than claims involving Tax matters, the other in the event it becomes aware of a claim procedures for which indemnification may be sought pursuant to this are set forth in Article 16. In case any proceeding (including any governmental investigationVII) shall be instituted involving any asserted and resolved as follows:
(a) Any Buyer Indemnified Party in respect of which indemnity may be sought pursuant to or Seller Indemnified Party claiming indemnification under this Article 16, such Party Agreement (the an “Indemnified Party”) with respect to any claim asserted against the Indemnified Party by a third party (a “Third-Party Claim”) in respect of any matter that is subject to indemnification under Section 9.2 shall promptly (i) notify the other Party (the “Indemnifying Party”) in writing of the Third-Party Claim and (an ii) transmit to the Indemnifying Party a written notice (a “Indemnification Claim Notice”) describing in reasonable detail the nature of the Third-Party Claim, a copy of all papers served with respect to such claim (if any), the Indemnified Party’s best estimate of the amount of Losses attributable to the Third-Party Claim and the basis of the Indemnified Party’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party is materially prejudiced by such delay or omission, subject to Section 9.1(c).
(b) The Indemnifying Party and shall have the right to defend the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of against such proceedingThird-Party Claim. At its option, If the Indemnifying Party may notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Third the Third-Party claim subject Claim (such election to indemnification as provided for in this Section 16.3 by giving written notice be without prejudice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt right of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the dispute whether such claim in full (the matters described in (i) and (iiis an indemnifiable Loss under this Article IX), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall have the right to defend such Third-Party Claim with counsel selected by the Indemnifying Party (who shall be relieved of its responsibility reasonably satisfactory to indemnify the Indemnified Party.
ii) Upon assuming ), by all appropriate proceedings, to a final conclusion or settlement at the defense discretion of a Third the Indemnifying Party claim in accordance with this Section 16.39.3(b). In such circumstances, the Indemnifying Party shall be entitled to appoint lead defend any such Third-Party Claim in good faith and have full control of such defense and proceedings, including any local counsel in the defense of the Third Party claim. Should compromise or settlement thereof; provided that the Indemnifying Party assume shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if (i) the settlement agreement contains a complete and continue unconditional general release by the defense third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of a Third any business by the Indemnified Party claimor its Affiliates. Upon the request of the Indemnifying Party, except as otherwise set forth in this Section 16.3the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party will not be liable and its counsel in contesting any Third-Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third-Party Claim or any cross complaint against any Person. The Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to may participate in, but not control, the any defense or settlement of a Third any Third-Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested Claim controlled by the Indemnifying Party in writingpursuant to this Section 9.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party shall (A) fail to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 9.3(b) within ten (10) Business Days after receipt of any Claim Notice, or (bB) the Indemnifying Party has failed after commencing or undertaking any such defense or settlement, fail to assume and actively further the prosecute or withdraw from such defense and engage counsel in accordance with this Section 16.3 (in which case or settlement, then the Indemnified Party will control shall have the defense)right to defend, or and be reimbursed for its reasonable cost and expense (cbut only if the Indemnified Party is actually entitled to indemnification hereunder) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject in regard to the Litigation Conditions being satisfied, Third-Party Claim with counsel selected by the Indemnifying Indemnified Party will have the sole right (who shall be reasonably satisfactory to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party by all amounts appropriate proceedings, which said Indemnified Party will proceedings shall be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due prosecuted diligently by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of In such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimcircumstances, the Indemnified Party will cooperate shall defend any such Third-Party Claim in good faith and have full control of such defense and proceedings; provided that the Indemnified Party may not enter into any compromise or settlement of such Third-Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention settlement controlled by the Indemnified Party ofpursuant to this Section 9.3(c), records and information that are reasonably relevant the Indemnifying Party shall bear its own costs and expenses with respect to such Third participation.
(d) Subject to the other provisions of this Article IX, a claim for indemnification for any matter not involving a Third-Party Claim may be asserted by notice to the Party from whom indemnification is sought, which notice shall set forth the basis of such claim in reasonable detail and be accompanied by evidence supporting the assertion of such claim.
(e) Notwithstanding anything to the contrary in this Section 9.3, and making employees and agents available on a mutually convenient basis the indemnification procedures set forth in Article VII shall control any indemnities relating to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationTax matters.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Plains All American Pipeline Lp)
Indemnification Procedure. i(a) Each Promptly after the incurring of Losses by any Party shall notify the or other in the event it becomes aware of a claim for which Person entitled to indemnification may be sought pursuant to under this Article 16. In case any proceeding VI (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16each, such Party (the an “Indemnified Party”), including any claim by a third party described in Sections 6.3(c) and 6.3(d) which might give rise to indemnification hereunder, the Indemnified Party shall promptly notify deliver a certificate containing the other information described below (a “Certificate”) to the Party that is required to indemnify such Indemnified Party under this Article VI (such indemnifying party, the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Each Certificate shall:
(i) state that the Indemnified Party has paid or properly accrued Losses or reasonably anticipates that it will incur liability for Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid, properly accrued or is estimated to be paid, the basis for any anticipated liability and the nature of the misrepresentation, inaccuracy or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled under Section 6.2 of this Agreement.
(b) In case the Indemnifying Party and shall object to the indemnification of an Indemnified Party shall promptly meet to discuss how to respond to in respect of any claim or claims that are the subject matter of such proceeding. At its optionspecified in any Certificate, the Indemnifying Party may assume shall, within thirty (30) days after receipt by the defense Indemnifying Party of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Certificate, deliver to the Indemnified Party within ** (or until a written notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified PartyParty shall, within the 30-day period beginning on the date of receipt by the Indemnified Party of such written objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Periodhave so objected. If the Indemnified Party fails and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly provide an Indemnification Claim Noticeprepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then such dispute shall be settled by arbitration in New York, New York, the borough of Manhattan, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. There shall be three arbitrators, one to be chosen by each Indemnifying Party and the Indemnified Party directly at will, and the third arbitrator to be selected by the two arbitrators so chosen. Each arbitrator shall be an attorney (i) whose primary practice area comprises mergers and acquisitions, (ii) with at least fifteen years of practice experience and (iii) that is a partner of a law firm consisting of at least 200 attorneys. Each of the Indemnifying Party and the Indemnified Party shall pay the fees of the arbitrator it selects and of its own attorneys and the expenses of its witnesses, and all other fees and costs shall be borne equally by FADV on the one hand and Contributor on the other. Judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction and no Party shall object to the entry of such failure materially prejudices award.
(c) Promptly after the assertion by any third party of any claim against any Indemnified Party that, in the judgment of such Indemnified Party, may result in the incurring by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Article VI, such Indemnified Party shall deliver to the Indemnifying Party a written notice describing in reasonable detail such claim and the Indemnifying Party may at its option assume the defense of the Indemnified Party against such claim (including the employment of counsel, who shall be reasonably satisfactory to the Indemnified Party) and the payment of expenses. An Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified in writing by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, then (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be relieved of its responsibility one or more legal defenses available to indemnify such Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnified Party.
ii) Upon assuming , but the defense assertion of which would be adverse to the interests of the Indemnifying Party. The Indemnifying Party shall not be liable to indemnify any Indemnified Party for any settlement of any such action or claim effected without the written consent of the Indemnifying Party, but if settled with the written consent of the Indemnifying Party, or if there be a Third Party claim final judgment for the plaintiff in accordance with this Section 16.3any such action, the Indemnifying Party shall be entitled indemnify and hold harmless each Indemnified Party from and against any Losses by reason of such settlement or judgment subject to appoint lead and Section 6.2.
(d) Claims for Losses specified in any local counsel Certificate to which an Indemnifying Party shall not object in the defense writing within thirty (30) days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the Third Party claim. Should nature described in Section 6.3(b), claims for Losses the validity and amount of which have been the subject of judicial determination as described in Section 6.3(b) and claims for Losses the validity and amount of which shall have been the subject of a final judicial determination, or shall have been settled with the consent of the Indemnifying Party assume and continue party, as described in Section 6.3(c) are hereinafter referred to as “Agreed Claims”. Within ten (10) Business Days of the defense determination of a Third Party claim, except as otherwise set forth in this Section 16.3the amount of any Agreed Claims, the Indemnifying Party will not be liable shall pay to the Indemnified Party for any legal expenses subsequently incurred an amount equal to the Agreed Claim by such Indemnified Party after wire transfer in immediately available funds to the date of assumption of defense bank account or accounts designated in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested writing by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or not less than three (c3) the Indemnifying Party no longer satisfies the Litigation ConditionsBusiness Days prior to such payment.
iii(e) Subject Notwithstanding anything else in this Agreement, concurrent with or prior to making a claim for indemnification under this Article VI, each Indemnified Party shall make a claim or claims under any available insurance policies potentially covering the Litigation Conditions being satisfiedsubject matter of the claim for indemnification made or to be made under this Article VI and shall pursue such insurance claim or claims until paid or coverage is finally denied. To the extent there is an Agreed Claim hereunder and an Indemnified Party collects any amounts under such insurance policies, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to shall promptly pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity amount so collected under such insurance policies up to assume the defense amount of the Third Party claim in accordance with this Section 16.3. If Agreed Claim.
(f) Notwithstanding anything herein to the contrary, no Indemnifying Party chooses shall be required to defend or prosecute indemnify any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationany special, consequential, punitive or indirect damages hereunder.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of If a claim for which party entitled to indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify learns of any matter that it believes will entitle such Indemnified Party to indemnification from the other Party Seller or the Buyer, as the case may be, under Section 11.2 (the “Indemnifying Party”) ), the Indemnified Party shall deliver to the Indemnifying Party a notice describing such matter in writing reasonable detail, including the nature of the claim, the basis for the indemnification obligation, to the extent reasonably estimable, the estimated losses resulting therefrom, and reasonable supporting documentation (an “Indemnification Claim Noticea ”Notice of Claim”). The Indemnifying Party and If the Notice of Claim involves a third party claim, the Indemnified Party shall promptly meet to discuss how to respond to any claims that are deliver the subject matter Notice of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If shorter of (i) 90 days after the date on which the Indemnified Party fails becomes aware of the claim related to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense Loss or (ii) one-third of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify time period commencing on the date on which the Indemnified PartyParty became aware of the claim related to the Loss and ending on the third Business Day preceding the date by which the appropriate defense must be presented as provided below.
ii(b) Upon assuming the defense of If any indemnification claim involves a Third Party claim in accordance with this Section 16.3third party claim, the Indemnifying Party shall be entitled to appoint lead assume the defense thereof within the shorter of (x) 30 days after the Notice of Claim has been delivered to the Indemnifying Party or (y) two-thirds of the time period commencing on the date on which the Indemnified Party became aware of the claim related to the Loss and ending on the third Business Day preceding the date by which the appropriate defense must be presented as provided below (provided that any local counsel in failure of the Indemnified Party to provide timely Notice of Claim shall not affect the Indemnifying Party’s right to assume the defense of any such third party claim), in either case with counsel reasonably satisfactory to the Third Party claim. Should Indemnified Party, at the Indemnifying Party’s sole expense, except that the Indemnifying Party shall not be entitled to assume and or continue control of the defense of a Third Party claimany third party claim if (i) the claim involves criminal liability, except as otherwise set forth in this Section 16.3, (ii) the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit claim seeks exclusively an injunction or settlement of the Third Party claim. Without limiting this Section 16.3, equitable relief against any Indemnified Party will be entitled to participate inParty, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (biii) the Indemnifying Party has failed or is failing to assume defend the claim in good faith or (iv) the claim relates to any of items 3 through 6 of Schedule 5.6(a) that are the subject of indemnification pursuant to Section 11.2(b). During the period referred to in the preceding sentence, the Indemnified Party shall, and actively further shall cause its Affiliates and its and their respective officers and directors to, provide such information to the Indemnifying Party as the Indemnifying Party may reasonably request in connection with its evaluation of whether a third party claim is an indemnifiable claim under Section 11.2. Notwithstanding the assumption of the defense of any claim by the Indemnifying Party, the Indemnified Party shall have the right to employ separate legal counsel and engage to participate in the defense of such claim, and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such separate legal counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed to pay such fees, out-of-pocket costs and expenses, (y) in the written opinion of counsel to the Indemnified Party a conflict of interest arises out of the representation of the interests of such Indemnified Party by counsel selected by the Indemnifying Party or (z) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time after the Notice of Claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in the preceding clauses (x), (y) or (z), the fees, costs and expenses of such legal counsel shall be borne exclusively by the Indemnified Party. The Indemnifying Party shall not in connection with each third party claim be liable for the fees and expenses of more than one firm of legal counsel for all of the Indemnified Parties. If the Indemnifying Party (having assumed the defense of a third party claim) or the Indemnified Party (having proceeded with its own defense of a third party claim in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c11.3) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject proposes to the Litigation Conditions being satisfiedsettle such third party claim, the Indemnifying Party will have or the sole right Indemnified Party (as applicable) shall provide notice to consent that effect (together with a reasonably detailed statement of the terms and conditions of such settlement) to the entry Indemnified Party or the Indemnifying Party (as applicable), which notice shall be provided a reasonable time prior to the proposed time for effecting such settlement, and shall not effect any such settlement without the prior consent of the Indemnified Party or the Indemnifying Party (as applicable), which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, no such consent of the Indemnified Party shall be required if the related settlement does not entail any admission of liability on the part of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as Indemnified Party and provides for the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional full release of the Indemnified Party from any and all liability with in respect thereto), and will transfer to the Indemnified of such third party claim. The Indemnifying Party all shall be solely responsible for any amounts which said Indemnified Party will be liable to pay pursuant to payable under any such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claimsagreement, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent as Losses of the Indemnified Party, not to be unreasonably withheld or delayed.
iv(c) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by If an Indemnified Party suffers an indemnifiable Loss that is reached without the written consent of such Indemnifying Party. The Indemnified Party will does not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party involve a third-party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to shall inform the Indemnifying Party toin writing thereof with a Notice of Claim, and reasonable retention upon receipt of such Notice of Claim, the Indemnifying Party shall promptly inform the Indemnified Party about its agreement or disagreement with respect to the notified Loss. If the Loss is subject to dispute, such dispute shall be considered as a dispute according to the terms of this Agreement and shall be resolved as provided for in Section 12.9 below. If there is no dispute on the Notice of Claim or, in case of a dispute, if the Loss is deemed to be due after the procedures described in Section 12.9 below, the Indemnifying Party shall, within ten (10) Business Days, pay for the Loss in immediately available funds, to the bank, branch and checking account indicated in advance and in writing by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation(except as otherwise contemplated by Section 11.6).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tredegar Corp)
Indemnification Procedure. (a) A party that seeks indemnification under must promptly give the other party notice of any legal action . But a delay in notice does not relieve an Indemnifying Party of any liability to any Indemnified Party, except to the extent the Indemnifying Party shows that the delay prejudiced the defense of the action . (b) The Indemnifying Party may participate in the defense at any time or it may assume the defense by giving notice to the Indemnified Parties . After assuming the defense, the Indemnifying Party : (i) Each must select counsel (including local counsel if appropriate) that is reasonably satisfactory to the Indemnified Parties; ACTIVE 703770992v10 (ii) is not liable to the other party for any later attorney’s fees or for any other later expenses that the Indemnified Parties incur, except for reasonable investigation costs; (iii) must not compromise or settle the action without the Indemnified Parties consent (which may not be unreasonably withheld) ; and (iv) is not liable for any compromise or settlement made without its consent. (c) If the Indemnifying Party fails to assume the defense within 10 Business Days after receiving notice of the action, the Indemnifying Party shall be bound by any determination made in the action or by any compromise or settlement made by the Indemnified Parties, and also remains liable to pay the Indemnified Parties’ legal fees and expenses . Section 9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS . All claims for indemnification by any Indemnified Party under Section 9 . 2 shall be asserted and resolved as follows : (a) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9 . 2 is asserted against or sought to be collected from such Indemnified Party by a Person other than a party hereto or an affiliate thereof (a “ Third Party Claim ”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is being asserted under any provision of Section 9 . 2 against an Indemnifying Party, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “ Claim Notice ”) with reasonable promptness to the Indemnifying Party . If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified Party . The Indemnifying Party shall notify the other in Indemnified Party as soon as practicable within the event it becomes aware period ending thirty ( 30 ) days following receipt by the Indemnifying Party of either a claim for which indemnification may be sought Claim Notice or an Indemnity Notice (as defined below) (the “ Dispute Period ”) whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party under Section 9 . 2 and whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim . (i) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Article 16Section 9 . In case any proceeding 3 (including any governmental investigationa) , then the Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be instituted involving any vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party in respect the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which indemnity may the Indemnified Party shall not be sought indemnified in full pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)Section 9 . 2 . The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof ; provided , however, that the Indemnified Party shall promptly meet may, at the sole cost and expense of the Indemnified Party, at any time prior ACTIVE 703770992v10 to discuss how the Indemnifying Party’s delivery of the notice referred to respond in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to any claims be necessary or appropriate to protect its interests ; and provided , further , that are if requested by the subject matter Indemnifying Party, the Indemnified Party will, at the sole cost and expense of such proceeding. At its optionthe Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest . The Indemnified Party may assume the participate in, but not control, any defense or settlement of any Third Party claim subject Claim controlled by the Indemnifying Party pursuant to indemnification this clause (i), and except as provided for in this the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to such participation . Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 16.3 by giving written notice 9 . 2 with respect to such Third Party Claim . (ii) If the Indemnifying Party fails to notify the Indemnified Party within ** the Dispute Period that the Indemnifying Party desires to defend the Third Party Claim pursuant to Section 9 . 3 (a), or until if the Indemnifying Party gives such time provided in notice but fails to prosecute vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any applicable extension to appropriately answer any complaintnotice whatsoever within the Dispute Period, if any, but no longer than ** (the “Election Time Period”); with then the Indemnified Party being obligated shall have the right to make all reasonable efforts to obtain any such extension) after defend, at the sole cost and expense of the Indemnifying Party’s receipt , the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of an Indemnification Claim Notice, solely for claims, the Indemnified Party (i) that solely seek monetary damages and (ii) as to which with the consent of the Indemnifying Party, which consent will not be unreasonably withheld) . The Indemnified Party expressly agrees in writing thatwill have full control of such defense and proceedings, as between the Indemnifying Party and including any compromise or settlement thereof ; provided, however, that if requested by the Indemnified Party, the Indemnifying Party shall be solely obligated will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to satisfy the Indemnified Party and discharge its counsel in contesting any Third Party Claim which the claim in full (Indemnified Party is contesting . Notwithstanding the matters described in (i) and foregoing provisions of this clause (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If has notified the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices within the defense of such claim, then Dispute Period that the Indemnifying Party shall be relieved disputes its liability or the amount of its responsibility liability hereunder to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Party with respect to such Third Party claim Claim and if such dispute is resolved in accordance with this Section 16.3, favor of the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth manner provided in this Section 16.3clause (iii) below, the Indemnifying Party will not be liable required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for any legal all reasonable costs and expenses subsequently incurred by such Indemnified the Indemnifying Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third such litigation . The Indemnifying Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to may participate in, but not control, the any defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at or settlement controlled by the Indemnified Party’s own expense unless Party pursuant to this clause (a) the engagement thereof has been specifically requested by ii), and the Indemnifying Party in writing, or shall bear its own costs and expenses with respect to such participation . (biii) If the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case notifies the Indemnified Party will control that it does not dispute its liability or the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry amount of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said with respect to the Third Party Claim under Section 9 . 2 or fails to notify the Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to within the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where Dispute Period whether the Indemnifying Party has assumed disputes its liability or the defense amount of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority its liability to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant respect to such Third Party claimClaim, and making employees and agents available on the amount of Damages specified in the Claim Notice shall be conclusively deemed a mutually convenient basis to provide additional information and explanation liability of any material provided hereunder. The the Indemnifying Party will reimburse under Section 9 . 2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.on demand . If the
Appears in 1 contract
Sources: Common Stock Purchase Agreement (OSR Holdings, Inc.)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which The party seeking indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Agreement (the “"Indemnified Party”") shall promptly notify the other Party party from which indemnification is being sought (the “"Indemnifying Party”") in writing of the facts and circumstances upon which the Indemnified Party intends to base a claim for indemnification hereunder (an “"Indemnification Claim Notice”Notices"). The Indemnifying Party and Indemnification Notice shall in all events be considered prompt if given (a) no later than 30 days after the Indemnified Party shall promptly meet learns of the facts upon which it will claim such indemnification or (b) if earlier, in sufficient time to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, allow the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in exercise its rights pursuant to this Section 16.3 by giving written 9.03; provided, however, that the failure to provide such Notice of claims promptly (so long as a notice of claims is given before the date on which the applicable representation or warranty ceases to survive) shall not affect the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt obligations of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between hereunder except to the extent the Indemnifying Party and the Indemnified Partyis prejudiced thereby. Except as specifically described in Section 4.05, the Indemnifying Party shall be solely obligated have the right, at its own cost, to satisfy and discharge participate jointly in the claim defense of any third-party claim, demand, lawsuit or other proceeding in full (connection with which the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party has claimed indemnification hereunder, and may assume responsibility elect to take over the defense of such claim within 10 days following notice thereof upon its written unconditional acknowledgment of its obligation to indemnify the Indemnified Party with respect to such claim; provided, however, that Stockholders shall be permitted to take over the defense of any claim brought by any customer or supplier of the Business against any member of Buyers' Indemnified Group for which indemnification is available pursuant to this Article IX, and such defense if member of Buyers' Indemnified Group shall defend such claim; provided, further, that such member of Buyers' Indemnified Group shall not settle or otherwise dispose of such claim without the Litigation Conditions are consent of Stockholders, which consent shall not satisfied, by written notice to be unreasonably withheld or delayed. If the Indemnifying Party within the Election Time Period. If makes such an election, (x) it shall keep the Indemnified Party fails informed as to the status of such matter and shall promptly provide an Indemnification Claim Noticesend copies of all pleadings to the Indemnified Party, (y) with respect to any issue involved in such claim, it shall have the sole right, with respect to claims or portions of claims seeking monetary damages only, to settle or otherwise dispose of such claim on such terms as it, in its sole discretion, shall deem appropriate; provided, however, that the consent of the Indemnified Party to the settlement or disposition shall be required if such settlement or disposition shall result in any indemnifiable liability to, equitable relief against or adverse business effect on the Indemnified Party, which consent shall not be unreasonably withheld or delayed, and such failure materially prejudices (z) the Indemnified Party shall have the right to participate jointly in the defense of such claim, then but shall do so at its own cost not subject to reimbursement under Section 9.02. If the Indemnifying Party shall be relieved of its responsibility does not elect to indemnify the Indemnified Party.
ii) Upon assuming take over the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party third-party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by shall have the right to contest, compromise or settle such Indemnified Party after claim in the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel exercise of its choice for such purposereasonable judgment; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by consent of the Indemnifying Party in writing, to any compromise or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damagesclaim shall be required if such compromise or settlement shall result in any liability to, equitable relief against or adverse business effect on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms which consent shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv(b) The Indemnifying Party that has assumed Notwithstanding the defense provisions of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability 9.03(a), with respect to, to any third-party claim or settle, compromise or discharge, any Third Party claim without first offering to demand that the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimis defending, the Indemnified Party will cooperate in shall have the defense or prosecution thereof right to retain separate counsel to represent it and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, shall pay the fees and reasonable retention by expenses of such separate counsel if there are conflicts that make it reasonably necessary for separate counsel to represent the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 1 contract
Indemnification Procedure. i(a) Each Promptly after receipt by a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice by a third party (including any Governmental Entity) of any complaint or the commencement of any Proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other Party for any Purchaser Losses or Seller Losses, as the case may be, such Indemnified Party shall notify Purchaser, Superfly or Seller, as the other case may be (the "Indemnifying Party"), promptly following the Indemnified Party's receipt of such complaint or of notice of the commencement of such Proceeding; provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the event it becomes aware forfeiture by the Indemnifying Party of a claim for which indemnification may be sought pursuant rights and defenses otherwise available to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any the Indemnifying Party in with respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** (10 days thereafter assuming full responsibility for any Purchaser Losses or until Seller Losses, as the case may be, resulting from such time provided in any applicable extension Proceeding, to appropriately answer any complaintassume the defense of such Proceeding, if any, but no longer than ** (including the “Election Time Period”); with employment of counsel reasonably satisfactory to the Indemnified Party being obligated to make all reasonable efforts to obtain any and the payment of the fees and disbursements of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticecounsel. If, solely for claimshowever, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between declines or fails to assume the Indemnifying Party and defense of the Proceeding on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such 10 day period, then such Indemnified Party may employ counsel to represent or defend it in any such Proceeding and the Indemnifying Party shall be solely obligated to satisfy will pay the reasonable fees and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense disbursements of such claimcounsel as incurred; provided, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, however; that the Indemnifying Party will not be liable required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Proceeding. In any Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after or the date of assumption of defense in connection with the analysisIndemnifying Party, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but whichever is not control, assuming the defense of a Third Party claim for which it has sought indemnification hereunder such action, will have the right to participate in such matter and to engage retain its own counsel of its choice for at such purpose; provided, however, that such engagement will be at party's own expense. The Indemnifying Party or the Indemnified Party’s own expense unless (a) , as the engagement thereof has been specifically requested by case may be, will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in writing, or good faith with each other with respect to the defense of any such matter.
(b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the No Indemnified Party will control the defense), may settle or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to compromise any claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose judgment with respect to which indemnification is being sought hereunder without the prior written consent of such Damages, on such terms as the Indemnifying Party, in its reasonable discretionunless (i) the Indemnifying Party fails to assume and maintain the defense of such claim pursuant to or (ii) such settlement, will deem appropriate compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (providedi) such settlement, however that such terms shall include a complete and compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (iii) does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of its Affiliates.
(c) In the event any Indemnified Party should have a claim for indemnity against any Indemnifying Party that does not involve a third party claim, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party. Such notice shall specify the basis for such claim. The failure by any Indemnified party so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect thereto)to any claim made pursuant to this , and will transfer it being understood that notices for claims in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under . If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party all amounts which said under this , or the amount thereof, the claim specified by the Indemnified Party will in such notice shall be liable conclusively deemed a liability of the Indemnifying Party under this , and the Indemnifying Party shall pay the amount of such liability to pay pursuant to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion of the claim) is estimated, on such settlement or disposal later date when the amount of such claim prior to the time (or such payments become due by the Indemnified Partyportion of such claim) becomes finally determined. With respect to all other Damages in connection with Third Party claims, where If the Indemnifying Party has assumed timely disputed its liability with respect to such claim as provided above, as promptly as possible, the defense Indemnifying Party and the Indemnified Party will establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days of the Third Party claim in accordance with this Section 16.3final determination of the merits and amount of such claim, the Indemnifying Party will have authority to consent pay to the entry of any judgment, enter into any settlement or otherwise dispose of Indemnified Party immediately available funds in an amount equal to such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedclaim as determined hereunder.
iv(d) The Indemnifying Party that has assumed Notwithstanding the defense of foregoing provisions or any other provision in this Agreement to the Third Party claim contrary, in accordance connection with this Section 16.3 will not any Proceedings subject to , Purchaser Indemnified Parties shall be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without entitled to, at its option: (i) approve the written consent of such Indemnifying Party. The 's choice of counsel to Purchaser Indemnified Party will not admit any liability with respect to, Parties satisfaction in their sole discretion; or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to (ii) assume the defense of such Proceedings, including the Third Party claim retention of counsel satisfactory to Purchaser Indemnified Parties in accordance with this Section 16.3. If their sole discretion, the cost of which (including fees, expenses and disbursements) shall be borne by the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate as provided in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Asset Purchase Agreement
Indemnification Procedure. The party or parties making a --------------------------- claim for indemnification under this Article IX shall be, for the purposes of this Agreement, referred to as the "Indemnified Party" and the party or parties ----------------- against whom such claims are asserted under this Article IX shall be, for the purposes of this Agreement, referred to as the "Indemnifying Party". All claims ------------------ by any Indemnified Party under this Article IX shall be asserted and resolved as follows:
(1) In the event that (i) Each any claim, demand or Proceeding is asserted or instituted by any Person other than the parties to this Agreement or their Affiliates which could give rise to Damages for which an Indemnifying Party could be liable to an Indemnified Party under this Agreement (such claim, demand or Proceeding, a "Third Party ----------- Claim") or (ii) any Indemnified Party under this ----- 63 Agreement shall notify the other in the event it becomes aware of have a claim for which indemnification may to be sought pursuant to this Article 16. In case indemnified by any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and under this Agreement which does not involve a Third Party Claim (such claim, a "Direct Claim"), the Indemnified Party shall promptly meet with ------------- reasonable promptness send to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving a written notice to specifying the Indemnified Party within ** nature of such claim, demand or Proceeding and the amount or estimated amount thereof (which amount or until such time provided in any applicable extension to appropriately answer any complaintestimated amount shall not be conclusive of the final amount, if any, but no longer than ** of such claim, demand or Proceeding) (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification a "Claim Notice"), solely for claims, (i) provided that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees a delay in writing that, as between the Indemnifying Party and the Indemnified Party, ------------- notifying the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to relieve the Indemnifying Party within of its obligations under this Agreement except to the Election Time Period. If extent that (and only to the extent that) such failure shall have caused the Damages for which Indemnifying Party is obligated to be greater than such Damages would have been had the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then given the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Partyproper notice.
ii(2) Upon assuming In the defense event of a Third Party claim in accordance with this Section 16.3Claim, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should Indemnifying Party's choice at the expense of the Indemnifying Party assume to represent the Indemnified Party and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, any others the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense may reasonably designate in connection with the analysissuch claim, defense, countersuit demand or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 Proceeding (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party will control except as set forth below); provided that such -------- counsel is reasonably acceptable to the defense)Indemnified Party. Notwithstanding an Indemnifying Party's election to appoint counsel to represent an Indemnified Party in connection with a Third Party Claim, an Indemnified Party shall have the right to employ separate counsel, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest or (cii) the Indemnifying Party no longer satisfies shall not have employed counsel to represent the Litigation Conditions.
iii) Subject to Indemnified Party within a reasonable time after notice of the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose institution of such Damages, on such terms as Third Party Claim. If requested by the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability agrees to cooperate with respect thereto)the Indemnifying Party and its counsel in contesting any claim, demand or Proceeding which the Indemnifying Party defends, or, if appropriate and will transfer related to the claim, demand or Proceeding in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-complaint against any Person. No Third Party Claim may be settled or compromised (i) by the Indemnified Party all amounts without the prior written consent of the Indemnifying Party, which said Indemnified Party will consent shall not be liable to pay pursuant to such settlement unreasonably withheld or disposal of such claim prior to the time such payments become due delayed or (ii) by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, which consent shall not to be unreasonably withheld or delayed.
iv) The Indemnifying . In the event any Indemnified Party that has assumed settles or compromises or consents to the defense entry of the any Judgment with respect to any Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached Claim without the prior written consent of such the Indemnifying Party. The , each Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering shall be deemed to have waived all rights against the Indemnifying Party for indemnification under this Article IX.
(3) In the opportunity to assume the defense event of the Third Party claim in accordance with this Section 16.3. If a Direct Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall notify the Indemnified Party will cooperate in within 30 Business Days of receipt of a Claim Notice whether or not the defense or prosecution thereof Indemnifying Party disputes such claim.
(4) From and will furnish after the delivery of a Claim Notice under this Agreement, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its representatives all reasonable access to the books, records and properties of such records, information and testimony, provide such witnesses including Indemnified Party to the extent possible, former employees and attend reasonably related to the matters to which the Claim Notice relates. All such conferences, discovery proceedings, hearings, trials and appeals as may access shall be reasonably requested in connection with such Third Party claim. Such cooperation will include access granted during normal business hours afforded to and shall be granted under conditions which will not unreasonably interfere with the Indemnifying Party to, business and reasonable retention by the operations of such Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderParty. The Indemnifying Party will reimburse the Indemnified Party for all not, and shall require that its reasonable out-of-pocket expenses incurred representatives do not, use (except in connection with such cooperationClaim Notice) or disclose to any third Person other than the Indemnifying Party's representatives (except as may be required by applicable Law) any information obtained pursuant to this Section 9.03(d) which is designated as confidential by an Indemnified Party.
Appears in 1 contract
Sources: Purchase Agreement (Oge Energy Corp)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 168. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 168, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 8.3 by giving written notice to the Indemnified Party within ** thirty (30) days or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** 60 days (the “Election Time Period”); , with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) extension after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, claims (ia) that solely seek monetary damages and (iib) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (ia) and (iib), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii(b) Upon assuming the defense of a Third Party claim in accordance with this Section 16.38.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim, in each case which counsel is reasonably acceptable to the Indemnified Party. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.38.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.38.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 8.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party Litigation Conditions are no longer satisfies the Litigation Conditionssatisfied.
iii(c) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such DamagesLosses, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however however, that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages Losses in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.38.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, Losses; provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld withheld, conditioned or delayed.
iv(d) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 8.3 will not be liable for any settlement or other disposition of any Damages Losses by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.38.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Asset Return and Termination Agreement (Cti Biopharma Corp)
Indemnification Procedure. i(a) Each Party shall notify Any person seeking indemnification under this Article 5 (the other in the event it becomes aware of "Indemnified Party") with respect to a claim for which indemnification may be sought pursuant to that is not a third party claim shall commence and resolve such Claim solely in accordance with the dispute resolution procedures set forth in this Article 16. In case 5.
(b) If any proceeding (including third party claim is asserted against any governmental investigation) shall be instituted involving any Indemnified Party in respect of which indemnity may be sought pursuant and such Indemnified Party intends to this Article 16, such seek indemnification hereunder from a Party (the “"Indemnifying Party"), then such Indemnified Party shall give notice of the third party claim to the Indemnifying Party as soon as practicable after the Indemnified Party has reason to believe that the Indemnifying Party will have an indemnification obligation with respect to such third party claim and shall provide the Indemnifying Party with all papers served with respect to such third party claim. Such notice shall describe in reasonable detail the nature of the third party claim, an estimate of the amount of damages attributable to the third party claim and the basis of the Indemnified Party”) 's request for indemnification under this Agreement. The failure of the Indemnified Party to so notify the Indemnifying Party of the third party claim shall not relieve the Indemnifying Party from any duty to indemnify hereunder unless and to the extent that the Indemnifying Party demonstrates that the failure of the Indemnified Party to promptly notify it of such third party claim materially prejudiced its ability to defend such third party claim; provided, that the other failure of the Indemnified Party (to notify the “Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party otherwise than under this Agreement. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party”, within five Business Days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) in writing received by the Indemnified Party relating to the third party claim.
(an “Indemnification Claim Notice”). c) The Indemnifying Party shall have the right to participate in, or assume control of, and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume Party's insurance carrier shall have the right to participate in, the defense of any Third Party the third party claim subject to indemnification as provided for in this Section 16.3 at its own expense by giving prompt written notice to the Indemnified Party within ** (or until such time provided in any applicable extension Party, using counsel of its choice reasonably acceptable to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party. If it elects to assume control of the defense of such third party claim, the Indemnifying Party shall be solely obligated defend such third party claim by promptly and vigorously prosecuting all appropriate proceedings to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”)a final conclusion or settlement. The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written After notice to from the Indemnifying Party within the Election Time Period. If to the Indemnified Party fails of its election to promptly provide an Indemnification Claim Notice, and such failure materially prejudices assume the defense of such third party claim, then the Indemnifying Indemnified Party shall be relieved of its responsibility have the right to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel participate in the defense of the Third Party claim. Should third party claim using counsel of its choice, but the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will shall not be liable to the Indemnified Party hereunder for any legal or other expenses subsequently incurred by such the Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, its participation in the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense thereof unless (ai) the engagement employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party fails to assume the defense or diligently prosecute the third party claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party in writing, or (b) agrees to cooperate with the Indemnifying Party has failed to assume and actively further the defense and engage its counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) contesting any third party claim that the Indemnifying Party no longer satisfies elects to contest, including the Litigation Conditions.
iii) Subject making of any related counterclaim against the third party asserting the third party claim or any cross-complaint against any person, in each case only if and to the Litigation Conditions being satisfied, extend that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the third party claim. The Indemnifying Party will shall have the sole right, acting in good faith and with due regard to the interests of the Indemnified Party, to control all decisions regarding the handling of the defense without the consent of the Indemnified Party, but shall not have the right to admit liability with respect to, or compromise, settle or discharge any third party claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose judgment with respect to such third party claim without the consent of such Damages, on such terms as the Indemnifying Indemnified Party, in its reasonable discretionwhich consent shall not be unreasonably withheld, will deem appropriate (providedunless such settlement, however that such terms shall include a complete and compromise or consent includes an unconditional release of the Indemnified Party from all liability with respect thereto)and obligations arising out of such third party claim and which would not otherwise adversely affect the Indemnified Party.
(d) If the Indemnifying Party fails to assume the defense of a third party claim within 30 days after receipt of written notice of the third party claim, and will transfer to then the Indemnified Party shall have the right to defend the third party claim by promptly and vigorously prosecuting all amounts which said appropriate proceedings to a final conclusion or settlement. The Indemnifying Party shall have the right to participate in the defense of the third party claim using counsel of its choice, but the Indemnified Party will shall not be liable to pay pursuant to such settlement the Indemnifying Party hereunder for any legal or disposal of such claim prior to other expenses incurred by the time such payments become due Indemnifying Party in connection with its participation in the defense thereof. If requested by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will agrees to cooperate with the Indemnified Party and its counsel in contesting any third party claim that the Indemnified Party elects to contest, including the making of any related counterclaim against the third Party asserting the third party claim or any cross-complaint against any person, in each case only if and to the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the third party claim. The Indemnified Party shall have authority the right, acting in good faith and with due regard to the interests of the Indemnifying Party, to control all decisions regarding the handling of the defense without the consent of the Indemnifying Party, but shall not have the right to compromise or settle any third party claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose of judgment with respect to such Damages, provided it obtains third party claim without the prior written consent of the Indemnified Indemnifying Party, which consent shall not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any withheld, unless such settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to consent includes an unconditional release of the Indemnifying Party the opportunity to assume the defense from all liability and obligations arising out of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party such third party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Transition Services Agreement (Carrizo Oil & Gas Inc)
Indemnification Procedure. i(a) Each A Party shall notify the other in the event it becomes aware or any of a claim for which its Affiliates seeking indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any claim or allegation, including by a Third Party (an “Indemnification Claim NoticeThird Party Claim”). The ) in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay so to notify the Indemnifying Party and shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party shall promptly meet except to discuss how the extent that the Indemnifying Party demonstrates that its ability to respond defend or resolve such claim is adversely affected thereby.
(b) Subject to any claims that are the subject matter provisions of such proceeding. At its optionSection 9.3(d) below, the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice given to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (30) days after receipt of the “Election Time Period”); with notice from the Indemnified Party being obligated of any Third Party Claim to make all reasonable efforts to obtain any assume the defense and handling of such extension) after Third Party Claim, at the Indemnifying Party’s receipt sole expense, in which case the provisions of an Indemnification Claim NoticeSection 9.3(c) below shall govern.
(c) The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense and handling of such Third Party Claim, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees shall defend or handle the same in writing that, as between the Indemnifying Party and consultation with the Indemnified Party, and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)not, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, not agree to be unreasonably withheld a settlement of any Third Party Claim which could lead to liability or delayed.
iv) The Indemnifying Party that has assumed create any financial or other obligation on the defense part of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that for which the Indemnified Party is reached without not entitled to indemnification hereunder, or would involve any admission of wrongdoing on the written consent part of such Indemnifying the Indemnified Party. The Indemnified Party will not admit any liability shall cooperate with respect tothe Indemnifying Party, or settleat the request and expense of the Indemnifying Party, compromise or dischargeand shall be entitled to participate in the defense and handling of such Third Party Claim with its own counsel and at its own expense.
(d) Notwithstanding the provisions of Section 9.3(c), in the event (i) the Indemnifying Party fails to conduct the defense and handling of any Third Party claim without first offering Claim in good faith after having assumed such, or (ii) the Indemnifying Party does not give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified Party of any Third Party Claim, of the Indemnifying Party’s election to assume the defense and handling of such Third Party Claim, then the Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party the opportunity to assume in connection with conducting the defense and handling of such Third Party Claim and defend or handle such Third Party Claim in such manner as it may deem appropriate, provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Third Party claim in accordance with this Section 16.3Claim and shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall cooperate with the Indemnified Party will cooperate Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with handling of such Third Party claim. Such cooperation will include access during normal business hours afforded Claim with its own counsel and at its own expense.
(e) No Party shall seek or be entitled to indemnification pursuant to this Article IX for any Losses arising from a breach of a representation, warranty, covenant or agreement that as of the Indemnifying date hereof such Party to, and reasonable retention by had Knowledge was inaccurate or incapable of being fulfilled at the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationEffective Date.
Appears in 1 contract
Sources: Termination and Asset Transfer Agreement (Array Biopharma Inc)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim All claims for which indemnification may be sought pursuant to this Article 16. In case any proceeding by an indemnified party (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly be asserted and resolved as set forth in this Section 11.4. As soon as is reasonably practicable after an Indemnified Party or any of its respective Affiliates, officers, directors, employees, agents, successors and assigns as the case may be becomes aware of any claim for which it is entitled to recover losses under this Article XI, such Indemnified Party shall notify the other Party party (the “Indemnifying Party”) in writing (an the “Indemnification Claim Notice”), which shall describe the claim in reasonable detail, and shall specify, in reasonable detail, facts underlying the nature of the claim, the basis for indemnification and the estimated amount of damages under such claim. The failure of any Indemnified Party to promptly give any Indemnifying Party such Claim Notice shall not preclude such Indemnified Party from obtaining indemnification under this Article XI except to the extent that such Indemnified Party’s failure has materially prejudiced the Indemnifying Party’s rights or materially increased its Liabilities hereunder.
(b) In the event that any claim or demand for which an Indemnifying Party, may be liable to any Indemnified Party hereunder, is asserted against or sought to be collected from any Indemnified Party by a third party, such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of such claim or demand, provide the Indemnifying Party with a Claim Notice.
(c) The Indemnifying Party shall have thirty (30) days from the personal delivery or receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party: (A) whether or not the Indemnifying Party disputes its liability to the Indemnified Party with respect to such claim or demand; and (B) in the case of a third party claim whether or not it will defend the Indemnified Party against such claim or demand. If the Indemnifying Party declines to defend the claim or demand, then the reasonable costs and expenses incurred by the Indemnified Party in defending such claim or demand shall be a liability of, and shall be paid by, the Indemnifying Party if the Indemnifying Party does not dispute its liability or if the Indemnifying Party does dispute its liability and the resolution of such dispute is against the Indemnifying Party. In the event that the Indemnifying Party elects to defend the Indemnified Party, it shall notify the Indemnified Party within the Notice Period that it will defend and accepts its obligation to indemnify the Indemnified Party against such claim or demand pursuant to this Agreement. The Indemnifying Party shall defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense. If any Indemnified Party desires to participate in any such defense it may do so at its sole cost and expense. If the Indemnifying Party assumes the defense, the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party not settle a claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim demand for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested is indemnified by the Indemnifying Party in writing, or (b) without the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to written consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the The Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3shall not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, which shall not to be unreasonably withheld or delayed.
iv) The , settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party, but if such consent is unreasonably withheld or delayed the Indemnified Party shall be liable to the Indemnifying Party that has assumed for all additional liability or cost incurred by the defense of the Third Indemnifying Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Partyas a result thereof. The Indemnified Party will not admit any liability diligently and fully cooperate with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume Party, its counsel, experts and other relevant persons, in the defense of the Third Party any claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimdemand including, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such recordswithout limitation, information and testimonyproviding access, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded hours, to the Indemnifying Party torelevant facilities and to business records and other documents, and reasonable retention by shall permit them to consult with the employees and counsel and other relevant persons of the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderParty. The Indemnifying Party will reimburse the Indemnified Party for all shall use its reasonable out-of-pocket expenses incurred in connection with efforts to defend all such cooperationclaims.
Appears in 1 contract
Indemnification Procedure. i(a) Each Promptly after receipt by an Indemnified Party of a notice from a third party of a claim, dispute, or threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification under this Article IX, such Indemnified Party shall notify provide prompt written notice to Buyer or the other in Stockholders’ Representative (on behalf of the event it becomes aware of a claim for which indemnification may be sought pursuant to Equity Holders), whichever is the appropriate indemnifying Party under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party IX (the “Indemnifying Party”); provided that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Article IX with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (i) in writing the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (an “Indemnification Claim Notice”)ii) actual and material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** thirty (30) days thereafter, to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party; provided that, the Indemnifying Party must first acknowledge in writing that it would have an indemnity obligation for the Losses arising out of such Third Party Claim.
(b) The Indemnifying Party shall not be entitled to assume the defense of such Third Party Claim if (i) the Indemnifying Party does not deliver the acknowledgement referred to in the proviso in Section 9.3(a), (ii) the Third Party Claim relates to or until such time provided arises in connection with any applicable extension to appropriately answer any complaintcriminal proceeding, if anyaction, but no longer than ** indictment, allegation or investigation, (the “Election Time Period”); with iii) the Indemnified Party being obligated reasonably believes that an adverse determination with respect to make all reasonable efforts the Third Party Claim would be materially detrimental to obtain the reputation or future business prospects of the Indemnified Party or its Affiliates, (iv) the Third Party Claim seeks injunctive or equitable relief against the Indemnified Party or any of its Affiliates, (v) the Third Party Claim involves a customer of the Group Companies or (vi) the Indemnifying Party has failed or is failing to prosecute or vigorously defend the Third Party Claim, and such extensionfailure has not been cured within fifteen (15) after days following written notice thereof delivered by the Indemnified Party to the Indemnifying Party’s receipt . For purposes of an Indemnification Claim Notice, solely for claimsclarity, (i) Buyer acknowledges that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in assume the defense of the Third Party claim. Should matter referenced in Item 1 of Schedule 9.1(f), and (ii) that the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, reimbursement for its reasonable out-of-pocket expenses in pursuing the defense of a such matter from the Specific Indemnity Escrow Fund.
(c) In any Third Party claim for Claim with respect to which it has indemnification is being sought indemnification hereunder under this Article IX, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to engage retain its own counsel at such Party’s own expense; provided that the foregoing will not limit such Party’s ability to recover the amount of its choice for such purpose; provided, however, that such engagement will be at attorneys’ fees to the extent they would otherwise constitute indemnifiable Losses hereunder. The Indemnifying Party or the Indemnified Party’s own expense unless (a) , as the engagement thereof has been specifically requested by case may be, shall at all times use reasonable efforts to keep the Indemnifying Party in writingor the Indemnified Party, or (b) as the Indemnifying Party has failed to assume and actively further case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and engage counsel to cooperate in accordance good faith with this Section 16.3 each other with respect to the defense of any such matter.
(in which case the d) No Indemnified Party will control the defense), may settle or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to compromise any claim or consent to the entry of any judgmentjudgment with respect to which indemnification is being sought under this Article IX without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, enter conditioned or delayed).
(e) If the Indemnifying Party assumes control of the defense of any Third Party Claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed) before entering into any settlement or otherwise dispose of such Damages, on Third Party Claim unless such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate settlement (provided, however that such terms shall include a complete and i) includes an unconditional release of the Indemnified Party from all liability with respect thereto)arising out of such claim, (ii) does not contain any admission or statement admitting any wrongdoing or liability on behalf of the Indemnified Party, and (iii) involves only the payment of monetary relief that will transfer be paid from the Indemnity Escrow Fund (subject to the other limitations set forth in this Article IX).
(f) If an Indemnified Party all amounts which said claims a right to payment pursuant to this Agreement not involving a Third Party Claim, then such Indemnified Party will be liable to pay pursuant to such settlement or disposal shall send written notice of such claim prior to the time appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such payments become due claim to the extent then known by the Indemnified Party. With respect to all other Damages in connection with Third As promptly as possible after the Indemnified Party claimshas given such notice, where such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, arbitration, litigation or otherwise) and, within five (5) Business Days after the final determination of the merits and amount of such claim, (i) if the Indemnifying Party has assumed is the defense of Equity Holders, then the Third Party Stockholders’ Representative shall cause the Escrow Agent to pay to Buyer in immediately available funds an amount equal to such claim in accordance with as determined under this Section 16.3, Article IX and (ii) if the Indemnifying Party will have authority to consent is Buyer, then Buyer shall pay to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent Stockholders’ Representative (on behalf of the Indemnified PartyEquity Holders), not an amount equal to be unreasonably withheld or delayedclaim as determined under this Article IX.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International Inc)
Indemnification Procedure. iClaims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) Each Party shall notify the other in the event it becomes aware of If a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any by a third party is made against a Seller Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such or a Purchaser Indemnified Party (the any such Person, an “Indemnified Party”), and if such Indemnified Party intends to seek indemnity with respect thereto under this Section VIII, such Indemnified Party shall furnish written notice of such claim (in reasonable detail and including the factual basis for such claim and the amount thereof) shall promptly notify to the other Party against whom indemnity is sought (such Party, in such capacity, the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly meet after the Indemnified Party’s receipt thereof, copies of all material notices and documents (including court papers) received or transmitted by the Indemnified Party relating to discuss how such claim. The failure or delay of the Indemnified Party to respond deliver prompt written notice of a claim shall not affect the indemnity obligations of the Indemnifying Party hereunder except to the extent the Indemnifying Party was actually disadvantaged by such failure or delay in delivery of notice of such claim. Within ten (10) Business Days of delivery of a notice of claim with respect to a third party claim, the Sellers may elect (by written notice delivered to Purchaser) to take all necessary steps properly to diligently contest any third party claim or to prosecute such third party claim to conclusion or, subject to the provisions of this Section, settlement, provided that as a condition to such election the Sellers acknowledge the obligation of the Sellers pursuant to this Article VIII to indemnify the Purchaser Indemnified Parties for all losses that may result from such third-party claim. If the Sellers make the foregoing election, Purchaser Indemnified Parties will have the right to participate at their own expense in all negotiations and proceedings. If the Sellers do not make such election within such period or fail to diligently contest such third party claim after such election, the Purchaser shall be free to handle the prosecution or defense of any such Third Party Claim and will permit the Sellers, at the sole cost of the Sellers, to participate in such prosecution or defense and will provide the Sellers with reasonable access to all relevant information and documentation relating to the Claim and the prosecution or defense thereof. No Indemnifying Party shall consent to any claims that are settlement, compromise or discharge (including the subject matter consent to entry of any judgment) of any such claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); provided that, if the Indemnifying Party assumes the defense of any such claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such proceeding. At its option, claim which the Indemnifying Party may assume recommend and which by its terms obligates the defense Indemnifying Party to pay the full amount of any Third Party Losses in connection with such claim subject to indemnification as provided for in this Section 16.3 by giving written notice to and unconditionally releases the Indemnified Party within ** (and its Affiliates from all liability in connection with such claim. Whether or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, not the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices have assumed the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or dischargedischarge (including the consent to entry of any judgment with respect to), any such claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned) unless the Indemnified Party has waived in writing any right to indemnity from the Indemnifying Party with respect to such claim in which case no such consent shall be required.
(b) In the event of payment in full by an Indemnifying Party to any Indemnified Party in connection with any claim (an “Indemnified Claim”), such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right or claim relating to such Indemnified Claim against any claimant or plaintiff asserting such Indemnified Claim or against any other Person. Such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner and (at such Indemnifying Party’s cost and expense) in prosecuting any subrogated right or claim.
(c) Any amount owing by an Indemnifying Party to an Indemnified Party in connection with any Indemnified Claim shall be paid by such Indemnifying Party within fifteen (15) days of final determination thereof (whether by mutual agreement of the Parties or pursuant to arbitral proceedings in accordance with Section XII below).
(d) If a Purchaser Indemnified Party proceeds with the defense of any Third Party claim without first offering Claim, all fees and expenses, including reasonable attorneys’ fees, relating to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded Claim shall be deemed to the Indemnifying Party to, and reasonable retention by be Losses for which the Indemnified Party of, records and information that Parties are reasonably relevant entitled to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided indemnification hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
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Indemnification Procedure. i(a) Each If a Buyer Indemnified Party shall notify the other in the event it becomes aware of or a claim for which Sellers Indemnified Party seeks indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16IX, such Party party (the “Indemnified Party”) shall promptly notify give written notice to the other Party party (the “Indemnifying Party”) in writing of the facts and circumstances giving rise to the claim. In that regard, if any Action, Liability or obligation shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article IX (an a “Indemnification Claim NoticeThird-Party Claim”). The Indemnifying Party and , the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, notify the Indemnifying Party may of such Third-Party Claim in writing, specifying the basis of such claim and the facts pertaining thereto, and the Indemnifying Party, if the Indemnifying Party so elects, shall assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto), including the employment of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice counsel reasonably satisfactory to the Indemnified Party within ** (or until such time provided in any applicable extension and the payment of all necessary expenses. If the Indemnifying Party elects to appropriately answer any complaintassume control of the defense of a Third-Party Claim, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated shall have the right to make all reasonable efforts to obtain employ counsel separate from counsel employed by the Indemnifying Party in any such extensionaction and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (i) after the Indemnifying Party has been advised by the Indemnifying Party’s receipt counsel that a reasonable likelihood exists of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as a conflict of interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and or (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (employ counsel; in which case the fees and expenses of the Indemnified Party’s counsel shall be paid by the Indemnifying Party. All claims other than Third-Party Claims (a “Direct Claim”) may be asserted by the Indemnified Party will control giving notice to the defense)Indemnifying Party. Absent an emergency or other extenuating circumstance, or (c) the Indemnified Party shall give written notice to the Indemnifying Party no longer satisfies the Litigation Conditionsof such Direct Claim prior to taking any material actions to remedy such Direct Claim.
iii(b) Subject to In no event shall the Litigation Conditions being satisfied, the Indemnifying Indemnified Party will have the sole right to consent to the entry of any judgment, pay or enter into any settlement of any claim or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability consent to any judgment with respect thereto), and will transfer to the Indemnified any Third-Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claim without the prior written consent of the Indemnified Party, Indemnifying Party (which consent shall not to be unreasonably withheld withheld, conditioned or delayed.
iv) if such settlement or judgment would require the Indemnifying Party to pay any amount. The Indemnifying Party that has assumed may enter into a settlement or consent to any judgment without the defense consent of the Third Indemnified Party claim so long as (i) such settlement or judgment involves monetary damages only and (ii) a term of the settlement or judgment is that the Person or Persons asserting such Third-Party Claim unconditionally release all Indemnified Parties from all liability with respect to such claim; otherwise the consent of the Indemnified Party shall be required in accordance with this Section 16.3 will not be liable for order to enter into any settlement of, or other disposition consent to the entry of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability a judgment with respect to, any Third-Party Claim, which consent shall not be unreasonably withheld, conditioned or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationdelayed.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case Whenever any proceeding (including any governmental investigation) Loss shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party asserted against or incurred by a Buyer Indemnitee or Seller Indemnitee (the “Indemnified Party”), the Indemnified Party shall give written notice thereof (a “Claim”) shall promptly notify the other Party to Seller or Buyer, respectively (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet furnish to discuss how the Indemnifying Party in reasonable detail such information as the Indemnified Party may have with respect to respond the Claim (including in any case copies of any summons, complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same). The failure to any claims give such notice shall not relieve the Indemnifying Party of its indemnification obligations under this Agreement except to the extent that are such failure actually prejudices the subject matter Indemnifying Party.
(b) If the Claim is based on a claim of such proceeding. At its optiona person that is not a party to this Agreement, the Indemnifying Party shall, at its expense, undertake the defense of such Claim with attorneys of its own choosing reasonably satisfactory to the Indemnified Party. In the event the Indemnifying Party, within a reasonable time after receiving notice of a Claim from the Indemnified Party, fails to defend the Claim, the Indemnified Party may, at the Indemnifying Party’s expense, undertake the defense of the Claim and may compromise or settle the Claim, all for the account of the Indemnifying Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified PartyClaim, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party under this Section 12.4 for any legal expenses subsequently incurred by such the Indemnified Party after the date of assumption of defense in connection with the analysisdefense thereof, defenseexcept for such expenses incurred in connection with cooperation with, countersuit or settlement of at the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not controlrequest of, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeIndemnifying Party; provided, however, that such engagement will be at the Indemnified Party shall have the right to engage counsel to represent it if, in the Indemnified Party’s own expense unless (a) reasonable judgment, based upon the engagement thereof has been specifically requested advice of counsel, it is advisable, in light of the separate interests of the Indemnified Party and the Indemnifying Party, for the Indemnified Party to be represented by separate counsel, and in that event the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party in writing, or Party.
(bc) the The Indemnifying Party has failed shall not consent to assume and actively further entry of any judgment, except with the defense and engage counsel in accordance with this Section 16.3 (in which case consent of the Indemnified Party will control the defense)given in its sole discretion, or (c) enter into any settlement, except with the Indemnifying consent of the Indemnified Party, which such consent shall not be unreasonably withheld or delayed. In the event the Indemnified Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right refuses to consent to the entry of any judgment, enter into any a judgment or a settlement or otherwise dispose of such Damages, on such terms as for which the Indemnifying Party is solely and entirely responsible and has indicated its sole and entire responsibility in writing to the Indemnified Party, in its reasonable discretionfollowing such refusal, will deem appropriate (provided, however that such terms shall include a complete and unconditional release the liability of the Indemnified Indemnifying Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to fixed at the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry amount of any judgment, enter into any settlement or otherwise dispose of such Damages, money damages provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense proposed judgment or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationsettlement.
Appears in 1 contract
Sources: Purchase Agreement (Exar Corp)
Indemnification Procedure. i) Each Party shall notify Upon the other in the event it becomes aware occurrence of a any claim for which indemnification is believed to be due under this Agreement, other than any claim discussed in Section 9.5 below, the party seeking indemnification (the "Indemnified Party") shall provide notice of such claim (a "Claim Notice") to the party (including each person who may be held jointly and severally liable with such person) from whom indemnification is sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “"Indemnifying Party”) in writing (an “Indemnification Claim Notice”"). The Claim Notice shall state in general terms the circumstances giving rise to the claim, specify the amount of the claim (or an estimate thereof), and make a request for any payment then believed due. A Claim Notice shall be conclusive against such Indemnifying Party and Indemnified in all respects 30 days after receipt by the Indemnifying Party shall promptly meet to discuss how to respond to any claims that are the subject matter of unless, within such proceeding. At its optionperiod, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to sends the Indemnified Party within ** a notice disputing the propriety or amount of the claim (or until a "Dispute Notice"). Any Dispute Notice shall describe the basis for such time provided in objection and the amount of the claim that the Indemnifying Party does not believe should be subject to indemnification. Upon receipt of any applicable extension to appropriately answer any complaintDispute Notice, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated use reasonable efforts to satisfy cooperate and discharge arrive at a mutually acceptable resolution of the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party dispute within the Election Time Periodnext 30 days. If a resolution is not reached within the Indemnified Party fails 30-day period, either party may submit the dispute to promptly provide arbitration in accordance with Article X. No claim for indemnification against any person who may be jointly and severally liable with an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of permitted unless and until such person has received a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead Claim Notice and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (30 day period in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsto send a Dispute Notice.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i(a) Each A Party shall notify the other in the event it becomes aware or any of a claim for which its Affiliates seeking indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any claim or allegation, including by a Third Party (an “Indemnification Claim NoticeThird Party Claim”). The ) in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay so to notify the Indemnifying Party and shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party shall promptly meet except to discuss how the extent that the Indemnifying Party demonstrates that its ability to respond defend or resolve such claim is adversely affected thereby.
(b) Subject to any claims that are the subject matter provisions of such proceeding. At its optionSection 9.3(d) below, the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice given to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (30) days after receipt of the “Election Time Period”); with notice from the Indemnified Party being obligated of any Third Party Claim to make all reasonable efforts to obtain any assume the defense and handling of such extension) after Third Party Claim, at the Indemnifying Party’s receipt sole expense, in which case the provisions of an Indemnification Claim NoticeSection 9.3(c) below shall govern.
(c) The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense and handling of such Third Party Claim, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees shall defend or handle the same in writing that, as between the Indemnifying Party and consultation with the Indemnified Party, and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)not, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, not agree to be unreasonably withheld a settlement of any Third Party Claim which could lead to liability or delayed.
iv) The Indemnifying Party that has assumed create any financial or other obligation on the defense part of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that for which the Indemnified Party is reached without not entitled to indemnification hereunder, or would involve any admission of wrongdoing on the written consent part of such Indemnifying the Indemnified Party. The Indemnified Party will not admit any liability shall cooperate with respect tothe Indemnifying Party, or settleat the request and expense of the Indemnifying Party, compromise or dischargeand shall be entitled to participate in the defense and handling of such Third Party Claim with its own counsel and at its own expense.
(d) Notwithstanding the provisions of Section 9.3(c), in the event (i) the Indemnifying Party fails to conduct the defense and handling of any Third Party claim without first offering Claim in good faith after having assumed such, or (ii) the Indemnifying Party does not give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified Party of any Third Party Claim, of the Indemnifying Party’s election to assume the defense and handling of such Third Party Claim, then the Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party the opportunity to assume in connection with conducting the defense and handling of such Third Party Claim and defend or handle such Third 32 [***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Confidential treatment has been requested with respect to this information. Party Claim in such manner as it may deem appropriate, provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Third Party claim in accordance with this Section 16.3Claim and shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall cooperate with the Indemnified Party will cooperate Party, at the Indemnified Party’s request but at no expense to the Indemnified Party, and shall be entitled to participate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with handling of such Third Party claim. Such cooperation will include access during normal business hours afforded Claim with its own counsel and at its own expense.
(e) No Party shall seek or be entitled to indemnification pursuant to this Article IX for any Losses arising from a breach of a representation, warranty, covenant or agreement that as of the Indemnifying date hereof such Party to, and reasonable retention by had Knowledge was inaccurate or incapable of being fulfilled at the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationEffective Date.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which that any Person entitled to indemnification may be sought pursuant to under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify receives notice of the other assertion of any claim or of the commencement of any Proceeding by any Person who is not a Party or an Affiliate of a Party (the a “Third Party Claim”) against such Indemnified Party, with respect to which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party will give written notice regarding such Third Party Claim to the Indemnifying Party within 30 days after learning of such Third Party Claim, provided that the failure to so notify an Indemnifying Party will not relieve the Indemnifying Party of its obligations under this ARTICLE 10.8 except to the extent (and only to the extent) that the Indemnifying is materially prejudiced by reason of such failure, and will not relieve such Indemnifying Party from any other obligation that it may have to an Indemnified Party other than under this ARTICLE 10.
(b) The Indemnifying Party will be entitled to participate in writing the defense of such Third Party Claim at such Indemnifying Party’s expense (an “Indemnification Claim Notice”which expenses will not be applied against any indemnity limitation herein). The Indemnifying Party and Indemnified Party shall promptly meet at its option will be entitled to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim thereof (subject to indemnification as provided for in this Section 16.3 the limitations set forth below) by giving (i) delivering written notice to the Indemnified Party of its election to assume the defense of such Third Party Claim within ** 15 days of receipt of notice from the Indemnified Party, (or until ii) appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** defense and (the “Election Time Period”); iii) entering into a written agreement with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees is unconditionally obligated to pay and satisfy any Losses which may arise with respect to such Third Party Claim and provides evidence of its ability to satisfy such obligation, in writing thateach case, as between in form and substance reasonably satisfactory to the Indemnified Party. If the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated does not expressly elect to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim Claim within the time period and otherwise in accordance with this Section 16.3the preceding sentence, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent assume the defense of and to the entry of any judgment, enter into any settlement or otherwise dispose of settle such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where Claim.
(c) If the Indemnifying Party has assumed the defense of the a Third Party claim Claim in accordance with this Section 16.3the terms hereof, the Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, and the fees and expenses of such separate counsel will be borne by the Indemnified Party other than any fees and expenses of such separate counsel (i) that are incurred prior to the date the Indemnifying Party assumes control of such defense, (ii) if the Indemnified Party reasonably will have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party that are not available to the Indemnifying Party, or (iii) if the Indemnifying Party may have different, conflicting, or adverse legal positions or interests from the Indemnified Party with respect to such Third Party Claim.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party will have authority not be entitled to consent assume the defense of a Third Party Claim (and the Indemnified Party will be entitled to maintain or assume control of the defense of such Third Party Claim) if (i) the Third Party Claim relates to or involves any criminal or quasi criminal Proceeding, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the entry Third Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects, (iii) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (iv) the Indemnified Party reasonably believes that the Losses relating to the claim could exceed the maximum amount that such Indemnified Party would then be entitled to recover under this ARTICLE 10, (v) the Third Party Claim involves Taxes, (vi) there exists or would, or could reasonably be expected to, exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (vii) the Indemnified Party elects to pursue one or more defenses or counterclaims available to it that are inconsistent with one or more of those that are being pursued by the Indemnifying Party in respect of such Third-Party Claim or any litigation relating thereto, (viii) the Third Party Claim involves a material customer or material supplier of the Indemnified Party, or (ix) the Indemnifying Party fails to vigorously defend the Third Party Claim.
(e) If the Indemnifying Party will assume the defense of any judgmentThird Party Claim, enter into any settlement or otherwise dispose of such Damages, provided it obtains the Indemnifying Party will obtain the prior written consent of the Indemnified PartyParty before entering into any settlement of, not consenting to be unreasonably withheld the entry of any judgment with respect to or delayedceasing to defend such Third Party Claim.
iv(f) The indemnification required hereunder in respect of a Third Party Claim will be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or within 10 days following the Indemnifying Party’s receipt of notice that Losses have been incurred.
(g) Notwithstanding the provisions of Section 11.13, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which a Proceeding in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(h) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for entitled to require that any settlement Proceeding be made or brought against any other disposition Person before a Proceeding is brought or claim is made against it hereunder by the Indemnified Party.
(i) In the event any Indemnified Party has a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party will deliver notice of such claim with reasonable promptness to the Indemnifying Party, provided that the failure to so notify an Indemnifying Party will not relieve the Indemnifying Party of its obligations under this ARTICLE 10 except to the extent (and only to the extent) that the Indemnifying Party is materially prejudiced by reason of such failure, and will not relieve such Indemnifying Party from any Damages by other obligation that it may have to an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with other than under this Section 16.3ARTICLE 10. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, does not notify the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish within 10 days following its receipt of such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to notice that the Indemnifying Party todisputes its Liability to the Indemnified Party hereunder, and reasonable retention such claim specified by the Indemnified Party of, records in such notice will be conclusively deemed a Liability of the Indemnifying Party hereunder and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse pay the amount of such Liability to the Indemnified Party on demand.
(j) If the Indemnifying Party agrees that it has an indemnification obligation under this ARTICLE 10 but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party will pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for all its reasonable out-of-pocket expenses incurred in connection with such cooperationthe difference.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kitov Pharmaceuticals Holdings Ltd.)
Indemnification Procedure. All claims by any Indemnified Party under this Article 13 shall be asserted and resolved as follows: In the event of any Third Party Claim, the Indemnified Party shall promptly send to the Indemnifying Party a Third Party Claim Notice; provided, however, that a delay in notifying the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Agreement, except and only to the extent that such failure shall have caused actual prejudice to the Indemnifying Party. In the event of a Third Party Claim, the Indemnifying Party shall have [*****] ([*****]) days after receipt of the Third Party Claim Notice relating to such Third Party Claim to elect to undertake, conduct and control, through counsel of its own choosing (provided that such counsel is reasonably acceptable to the Indemnified Party) and at its own expense, the settlement or defense of such Third Party Claim (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by any Indemnified Party except as set forth below) if (i) Each it gives notice of its intention to do so to the Indemnified Party within [*****] days of the receipt of such notice from the Indemnified Party, (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (iii) the Indemnifying Party assumes all responsibility for the Damages underlying such Third Party Claim, without any reservations or rights or similar claims and (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently, including the posting of bonds or other security required in connection with the defense of such Third Party Claim. Notwithstanding an Indemnifying Party’s election to appoint counsel to represent an Indemnified Party in connection with a Third Party Claim, an Indemnified Party shall notify have the right to employ separate counsel, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, or (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such Third Party Claim. If the Indemnifying Party elects to undertake such defense, (x) the Indemnified Party agrees to reasonably cooperate with the Indemnifying Party and its counsel in contesting such Third Party Claim, and, if appropriate and related to such Third Party Claim, the Indemnifying Party and the Indemnified Party will reasonably cooperate with each other in connection with making any counterclaim against the person or entity asserting the Third Party Claim, or any cross-complaint against any person or entity, (y) such Third Party Claim may not be settled or compromised by the Indemnified Party without the prior written consent of the Indemnifying Party; provided, however, that in the event it becomes aware any Indemnified Party settles or compromises or consents to the entry of a claim any judgment with respect to any Third Party Claim without the prior written consent of the Indemnifying Party, such Indemnified Party shall be deemed to have waived all rights against the Indemnifying Party for which indemnification may be sought under this Article 13, and (z) the Indemnifying Party shall not, except with the consent of the Indemnified Party, enter into any settlement that does not include as an unconditional term thereof the giving by the third party asserting such Third Party Claim to all Indemnified Parties of (A) unconditional release from all liability with respect to such Third Party Claim or (B) consent to entry of any judgment. If the Indemnified Party assumes the defense of any such claims or proceeding pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any 13 because the Indemnifying Party elects not to defend such Third Party Claim, or fails to notify the Indemnified Party in respect wiring of which indemnity may be sought pursuant its election to defend as provided for in this Article 1613, such the Indemnified Party may, with the prior written consent of the Indemnifying Party (the “Indemnified Party”such consent not to be unreasonably withheld, conditioned or delayed) shall promptly notify the other pay, compromise, settle or defend such Third Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet Claim, including settling such claims or proceeding prior to discuss how to respond to a final judgment thereon or forgoing any claims that are the subject matter of such proceeding. At its optionappeal with respect thereto; provided, however, the Indemnifying Party may shall have the right to participate in the settlement or assume or reassume the defense of such claims of proceedings. The aggregate amount of all Damages in connection with such settlement with respect to which the Indemnifying Party has consented shall be indemnifiable by the Indemnifying Party hereunder up to the aggregate limitation of liability set forth in this Article 13. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 Claim (but the fees and expenses of counsel incurred by giving written notice to the Indemnified Party within ** in defending such Third Party Claim shall nonetheless be considered Damages for purposes of this Agreement) if the Third Party Claim: (A) seeks an order, injunction, equitable relief or until such time provided other relief other than money damages against any Indemnified Party that cannot reasonably be separated from any related claim for money damages, (B) seeks money damages which, together with any other Damages reasonably expected in connection therewith, are likely to exceed the aggregate amount the Indemnifying Party would be responsible for under this Article 13 with respect thereto, (C) involves a Governmental Authority, or (D) relates to or arises in connection with any applicable extension to appropriately answer any complaintcriminal Action. In the event of a Third Party Claim, if anyfrom and after the delivery of a Claim Notice under this Agreement, but no longer than ** (at the “Election Time Period”); with reasonable request of the Indemnifying Party, the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between shall grant the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice its representatives all reasonable access to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Noticebooks, records and such failure materially prejudices the defense properties of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend reasonably related to the matters to which the Claim Notice relates. All such conferences, discovery proceedings, hearings, trials and appeals as may access shall be reasonably requested in connection with such Third Party claim. Such cooperation will include access granted during normal business hours afforded to and shall be granted under conditions that will not unreasonably interfere with the Indemnifying Party to, businesses and reasonable retention by the operations of such Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderParty. The Indemnifying Party will reimburse the Indemnified Party for all not, and shall cause its reasonable out-of-pocket expenses incurred representatives not to, use (except in connection with such cooperationClaim Notice or such Third Party Claim) or disclose to any third person or entity other than the Indemnifying Party’s representatives (on a need to know basis and except as may be required by Laws) any information obtained pursuant to this Section 13.1(e), which shall be held and treated as confidential by the Indemnifying Party and its representatives.
Appears in 1 contract
Sources: Master Outsourcing Services Agreement (Styron Investment Holdings Ireland)
Indemnification Procedure. i(a) Each If a Buyer Indemnified Party shall notify the other in the event it becomes aware of or a claim for which Seller Indemnified Party seeks indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16IX, such Party party (the “Indemnified Party”) shall promptly notify give written notice to the other Party party (the “Indemnifying Party”) in writing of the facts and circumstances giving rise to the claim. In that regard, if any Action, Liability or obligation shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article IX (an a “Indemnification Claim NoticeThird-Party Claim”). The Indemnifying Party and , the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, notify the Indemnifying Party may of such Third-Party Claim in writing, specifying the basis of such claim and the facts pertaining thereto, and the Indemnifying Party, if the Indemnifying Party so elects, shall assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto), including the employment of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice counsel reasonably satisfactory to the Indemnified Party within ** (or until such time provided in any applicable extension and the payment of all necessary expenses. If the Indemnifying Party elects to appropriately answer any complaintassume control of the defense of a Third-Party Claim, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated shall have the right to make all reasonable efforts to obtain employ counsel separate from counsel employed by the Indemnifying Party in any such extensionaction and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party. All claims other than Third-Party Claims (a “Direct Claim”) after may be asserted by the Indemnified Party giving notice to the Indemnifying Party’s receipt of . Absent an Indemnification Claim Noticeemergency or other extenuating circumstance, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by give written notice to the Indemnifying Party within the Election Time Period. If of such Direct Claim prior to taking any material actions to remedy such Direct Claim.
(b) In no event shall the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit pay or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement of any claim or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability consent to any judgment with respect thereto), and will transfer to the Indemnified any Third-Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claim without the prior written consent of the Indemnified Party, Indemnifying Party (which consent shall not to be unreasonably withheld withheld, conditioned or delayed.
iv) if such settlement or judgment would require the Indemnifying Party to pay any amount. The Indemnifying Party that has assumed may enter into a settlement or consent to any judgment without the defense consent of the Third Indemnified Party claim so long as (i) such settlement or judgment involves monetary damages only and (ii) a term of the settlement or judgment is that the Person or Persons asserting such Third-Party Claim unconditionally release all Indemnified Parties from all liability with respect to such claim; otherwise the consent of the Indemnified Party shall be required in accordance with this Section 16.3 will not be liable for order to enter into any settlement of, or other disposition consent to the entry of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability a judgment with respect to, any Third-Party Claim, which consent shall not be unreasonably withheld, conditioned or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationdelayed.
Appears in 1 contract
Sources: Stock and Membership Interest Purchase Agreement (1847 Holdings LLC)
Indemnification Procedure. i(a) Each Party If any third party shall notify any party (the other in the event it becomes aware of "Indemnified Party") with respect to any matter (a "Third Party Claim") which may give rise to a claim for which indemnification may be sought pursuant to against the other party (the "Indemnifying Party") under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any 10, then the Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for thereof in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposewriting; provided, however, that such engagement will be at no delay on the part of the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by Party in notifying the Indemnifying Party in writing, or shall relieve the Indemnifying Party from any obligation hereunder unless (band then solely to the extent) the Indemnifying Party has failed thereby is prejudiced by such delay.
(b) The Indemnifying Party shall have the right to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case defend the Indemnified Party will control against the defense), or (c) Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long as the Indemnifying Party no longer satisfies notifies the Litigation Conditions.
iii) Subject to Indemnified Party in writing within 45 days after receipt of notice from the Litigation Conditions being satisfied, Indemnified Party regarding such claim. So long as the Indemnifying Party is conducting the defense of such claim as provided in the immediately preceding sentence, the Indemnified Party may retain separate co-counsel at its sole cost and expense and may participate in defense of such claim. The Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with a Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claim without the prior written consent of the Indemnified Party, Party (not to be unreasonably withheld unreasonably) unless the judgment or delayedproposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party.
iv(c) The Unless and until the Indemnifying Party that has assumed assumes the defense of the Third Party Claim as provided above, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably may deem appropriate with counsel reasonably acceptable to the Indemnifying Party. In no event will the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party.
(d) In the event that any Indemnified Party has a claim against any party obligated to provide indemnification pursuant to Article 10 hereof which does not involve a Third Party Claim, the Indemnified Party shall with reasonable promptness notify the Indemnifying Party of such claim, specifying the nature of such claim and the amount or the estimated amount thereof to the extent then feasible (the "Claim Notice"). If the Indemnifying Party does not notify the Indemnified Party within 30 days after the date of delivery of the Claim Notice that the Indemnifying Party disputes such claim, with a detailed statement of the basis of such position, the amount of such claim shall be conclusively deemed a liability of the Indemnifying Party hereunder. In case an objection is made in writing in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim10.3(d), the Indemnified Party will cooperate shall respond in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including a written statement to the extent possibleobjection within 15 days and, former employees for 60 days thereafter, the parties shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims (and, if the parties should so agree, a memorandum setting forth such agreement shall be prepared and attend such conferencessigned by both parties). If the parties do not so agree, discovery proceedings, hearings, trials and appeals as then either party may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to pursue its remedies under law following the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable outaforesaid 60-of-pocket expenses incurred in connection with such cooperationday period.
Appears in 1 contract
Sources: Supply Agreement (Pemstar Inc)
Indemnification Procedure. i(a) Each A claim for indemnification for any matter not involving a Third-Party shall Claim may be asserted by notice to the party from whom indemnification is sought; provided, however, that failure to so notify the other indemnifying party shall not preclude the indemnified party from any indemnification which it may claim in the event it becomes aware of a claim for which indemnification may be sought pursuant to accordance with this Article 16. In case VI, except as otherwise provided in Section 6.01 and Section 6.02.
(b) Promptly after any proceeding (including any governmental investigation) shall be instituted involving any Partnership Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such or Purchaser Indemnified Party (hereinafter, the “Indemnified Party”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each a “Third-Party Claim”), the Indemnified Party shall promptly notify give the other Party indemnitor hereunder (the “Indemnifying Party”) in writing (an “Indemnification written notice of such Third-Party Claim, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such Third-Party Claim Notice”)to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly, and in no event later than 10 days, notify the Indemnified Party of its intention to do so, and the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); cooperate with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility liable for such defense if the Litigation Conditions are not satisfied, any additional legal expenses incurred by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit any defense or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeasserted liability; provided, however, that such engagement will be at the Indemnified Party’s own expense unless Party shall be entitled (ai) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (ii) if (A) the engagement thereof has been specifically requested Indemnifying Party has, within 10 Business Days of when the Indemnified Party provides written notice of a Third-Party Claim, failed (1) to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (2) to notify the Indemnified Party of such assumption or (B) if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with as incurred. Notwithstanding any other provision of this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfiedAgreement, the Indemnifying Party will have shall not settle any indemnified claim without the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not to be unreasonably withheld include any admission of wrongdoing or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimmalfeasance by, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case that any proceeding (including any governmental investigation) shall be instituted involving any Purchaser Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such or Seller Indemnified Party (as applicable, the “Indemnified Party”) shall promptly notify receives notice of the assertion of any claim or of the commencement of any Proceeding by any Person who is not a Party or an Affiliate of a Party (a “Third Party Claim”) against such Indemnified Party, with respect to which the other Party (the “Indemnifying Party”) is or may be required to provide indemnification under this Agreement, the Indemnified Party shall give written notice regarding such Third Party Claim to the Indemnifying Party within [***] after learning of such Third Party Claim, provided that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of their obligations under this Article VI except to the extent (and only to the extent) that the Indemnifying Party incur greater costs by reason of such failure, and will not relieve the Indemnifying Party from any other obligation that they may have to an Indemnified Party other than under this Article VI. For purposes of this Article VI, (i) any references to the Indemnified Party with respect to a Purchaser Indemnified Party, shall, if the context so applies or if Purchaser so elects, apply to Purchaser on behalf of the applicable Purchaser Indemnified Party and (ii) any references to the Indemnified Party with respect to a Seller Indemnified Party, shall, if the context so applies or if Seller so elects, apply to Seller on behalf of the applicable Seller Indemnified Party.
(b) The Indemnifying Party shall be entitled to participate in writing the defense of such Third Party Claim at the Indemnifying Party’s expense (an “Indemnification Claim Notice”which expenses shall not be applied against any indemnity limitation herein). The Indemnifying Party, at its option shall be entitled to assume the defense thereof (subject to the limitations set forth below) by delivering written notice to the Indemnified Party and of its election to assume the defense of such Third Party Claim within [***] of receipt of notice from the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period set forth in the preceding sentence, the Indemnified Party shall promptly meet have the sole right to discuss how assume the defense of and to respond settle such Third Party Claim.
(c) If the Indemnifying Party has assumed the defense of a Third Party Claim in accordance with the terms hereof, the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, and the fees and expenses of such separate counsel shall be borne by the Indemnified Party other than any claims fees and expenses of such separate counsel (i) if the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party that are not available to the subject matter of Indemnifying Party, or (ii) if the Indemnifying Party may have different, conflicting, or adverse legal positions or interests from the Indemnified Party with respect to such proceeding. At its optionThird Party Claim.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party may shall not be entitled to control the defense of a Third Party Claim (and the Indemnified Party shall be entitled to maintain or assume control of the defense of such Third Party Claim, at the Indemnifying Party’s sole expense) if (i) the Third Party Claim relates to or involves any criminal or quasi criminal Proceeding against the Indemnified Party or any of its Representatives, (ii) the Third Party Claim could reasonably be expected to materially and adversely affect the Indemnified Party (as determined by the Indemnified Party in good faith) other than as solely a result of money damages, (iii) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (iv) the Third Party Claim involves Taxes (which shall be governed exclusively by Section 5.6), (v) there exists or would, or could reasonably be expected to, exist a conflict of interest that would make it inappropriate in the judgment of the Purchaser Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (vi) the Indemnified Party elects to pursue one or more defenses or counterclaims available to it that are inconsistent with one or more of those that are being pursued by the Indemnifying Party in respect of such Third Party Claim or any litigation relating thereto, (vii) the Third Party Claim involves a customer or supplier of Purchaser or its Affiliates, (viii) the Third Party Claim relates to any Intellectual Property, or (ix) the Indemnifying Party fail to vigorously defend the Third Party Claim.
(e) If the Indemnifying Party shall control the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving Claim, the Indemnifying Party shall obtain the prior written notice to consent of the Indemnified Party within ** before entering into any settlement of, consenting to the entry of any judgment with respect to or ceasing to defend such Third Party Claim if (i) pursuant to or until as a result of such time provided in settlement, consent or cessation, injunctive or other equitable relief will be imposed against the Purchaser Indemnified Party, or a finding or admission of any applicable extension violation of Law would be made by any Purchaser Indemnified Party, or such settlement, consent or cessation could otherwise reasonably be expected to appropriately answer interfere with or adversely affect the business, operations or assets of the Purchaser Indemnified Party, or (ii) such settlement or judgment does not expressly and unconditionally release the Purchaser Indemnified Party from all Liabilities and obligations with respect to such Third Party Claim.
(f) In the event any complaintIndemnified Party has a claim against an Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated shall deliver notice of such claim with reasonable promptness to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) provided that solely seek monetary damages and (ii) as the failure to which so notify the Indemnifying Party expressly agrees in writing that, as between shall not relieve the Indemnifying Party of its obligations under this Article VI except to the extent (and only to the extent) that such Indemnifying Party is actually and materially prejudiced by reason of such failure, and will not relieve the Indemnifying Party from any other obligation that it may have to an Indemnified Party other than under this Article VI.
(g) If the Indemnifying Party agrees that it has an indemnification obligation under this Article VI but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall be solely obligated pay such lesser amount promptly to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense , without prejudice to or waiver of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) claim for the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsdifference.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i) Each Party shall notify the other in the event it becomes aware of a claim Claims for which indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) Agreement shall be instituted involving any asserted and resolved as follows:
(a) Any Buyer Indemnified Party in respect of which indemnity may be sought pursuant to or Seller Indemnified Party claiming indemnification under this Article 16, such Party Agreement (the an “Indemnified Party”) with respect to any claim asserted against the Indemnified Party by a third party (a “Third-Party Claim”) in respect of any matter that is subject to indemnification under Section 8.2 shall promptly (i) notify the other Party (the “Indemnifying Party”) in writing of the Third-Party Claim and (an ii) transmit to the Indemnifying Party or Parties a written notice (a “Indemnification Claim Notice”) describing in reasonable detail the nature of the Third-Party Claim, a copy of all papers served with respect to such claim (if any), the Indemnified Party’s best estimate of the amount of MS Hub MIPA Losses attributable to the Third-Party Claim and the basis of the Indemnified Party’s request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party’s indemnification hereunder, except to the extent the Indemnifying Party is materially prejudiced by such delay or omission, subject to Section 8.1(b).
(b) The Indemnifying Party and shall have the right to defend the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of against such proceedingThird-Party Claim. At its option, If the Indemnifying Party may notifies the Indemnified Party that the Indemnifying Party elects to assume the defense of any Third the Third-Party claim subject Claim (such election to indemnification as provided for in this Section 16.3 by giving written notice be without prejudice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt right of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the dispute whether such claim in full (the matters described in (i) and (iiis an indemnifiable MS Hub MIPA Loss under this Article VIII), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall have the right to defend such Third-Party Claim with counsel selected by the Indemnifying Party (who shall be relieved of its responsibility reasonably satisfactory to indemnify the Indemnified Party.
ii), by all appropriate proceedings, to a final conclusion or settlement (including any appeals) Upon assuming at the defense discretion of a Third the Indemnifying Party claim in accordance with this Section 16.38.3(b). In such circumstances, the Indemnifying Party shall be entitled to appoint lead defend any such Third-Party Claim in good faith and have full control of such defense and proceedings, including any local counsel in the defense of the Third Party claim. Should compromise or settlement thereof; provided that the Indemnifying Party assume shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if (i) the settlement agreement contains a complete and continue unconditional general release by the defense third party asserting the claim to all Indemnified Parties affected by the claim and (ii) the settlement agreement is for money damages and contains only customary settlement provisions, including confidentiality agreements, that do not restrict, in any material respect, the conduct of a Third any business by the Indemnified Party claimor its Affiliates. Upon the request of the Indemnifying Party, except as otherwise set forth in this Section 16.3the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party will not be liable and its counsel in contesting any Third-Party Claim which the Indemnifying Party elects to contest, including the making of any related counterclaim against the Person asserting the Third-Party Claim or any cross complaint against any Person. The Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to may participate in, but not control, the any defense or settlement of a Third any Third-Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested Claim controlled by the Indemnifying Party in writingpursuant to this Section 8.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation.
(c) If the Indemnifying Party shall (A) fail to notify the Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 8.3(b) within fifteen (15) Business Days after receipt of any Claim Notice, or (bB) the Indemnifying Party has failed after commencing or undertaking any such defense or settlement, fail to assume and actively further the prosecute or withdraw from such defense and engage counsel in accordance with this Section 16.3 (in which case or settlement, then the Indemnified Party will control shall have the defense)right to defend, or and be reimbursed for its reasonable cost and expense (cbut only if the Indemnified Party is actually entitled to indemnification hereunder) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject in regard to the Litigation Conditions being satisfied, Third-Party Claim with counsel selected by the Indemnifying Indemnified Party will have the sole right (who shall be reasonably satisfactory to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party by all amounts appropriate proceedings, which said Indemnified Party will proceedings shall be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due prosecuted diligently by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of In such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimcircumstances, the Indemnified Party will cooperate shall defend any such Third-Party Claim in good faith and have full control of such defense and proceedings; provided that the Indemnified Party may not enter into any compromise or settlement of such Third-Party Claim if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention settlement controlled by the Indemnified Party ofpursuant to this Section 8.3(c), records and information that are reasonably relevant the Indemnifying Party shall bear its own costs and expenses with respect to such Third Party claimparticipation. Notwithstanding the foregoing, and making employees and agents available on a mutually convenient basis with respect to provide additional information and explanation any Specified Claim, the Buyer Indemnified Parties shall comply with the Supplemental Agreement and, in the event of any material provided hereunder. The Indemnifying conflict between this Section 8.3 and the Supplemental Agreement, the Supplemental Agreement shall control.
(d) Subject to the other provisions of this Article VIII, a claim for indemnification for any matter not involving a Third-Party will reimburse Claim may be asserted by notice to the Indemnified Party for all its from whom indemnification is sought, which notice shall set forth the basis of such claim in reasonable out-of-pocket expenses incurred in connection with detail and be accompanied by evidence supporting the assertion of such cooperationclaim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Energysouth Inc)
Indemnification Procedure. i(a) Each Party Subject to the provisions of Section 8.3(d), the indemnified party (the "INDEMNIFIED PARTY") shall notify give the other in indemnifying party (the "INDEMNIFYING PARTY") prompt notice of any Losses (or potential Losses) which may be covered under this Article VIII and such notice shall state the basis for the claim, action or proceeding and the amount thereof (to the extent such amount is determinable at the time when such notice is given). In the event it becomes aware of the notice relates to a claim claim, assertion, action, suit or proceeding by a third-party ("THIRD PARTY CLAIM") for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16is provided hereunder, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, permit the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension its insurance company) to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then assertion, action, suit or proceeding and the Indemnifying Party (or its insurance company) may (i) prior to the commencement of any proceedings in connection with such Losses, undertake the negotiation of any resolution of the dispute relating to such Losses, including in accordance with the terms hereof any settlement or release, or (ii) undertake the defense of any proceeding (including any alternative dispute resolution proceeding) regarding such Losses by selecting legal counsel who shall be relieved reasonably acceptable to the Indemnified Party. Failure of the Indemnifying Party to notify an Indemnified Party of its responsibility election to indemnify undertake the Indemnified Party's defense of a Third Party Claim within a reasonable time, but in no event more than thirty (30) days after notice thereof shall have been given to the Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its right to undertake the defense of such Third Party Claim. Will▇▇▇ ▇▇▇▇ & ▇allagher, Neal, Gerber & Eise▇▇▇▇▇ ▇▇▇ counsel for the Indemnifying Party's insurance company shall be deemed reasonably acceptable to the Indemnified Party.
ii(b) Upon assuming Provided the Indemnifying Party shall have undertaken the Indemnified Party's defense of a Third Party Claim with legal counsel reasonably acceptable to the Indemnified Party, and shall have so notified the Indemnified Party, the Indemnified Party shall be entitled to participate at its own expense in the aforesaid negotiation or defense of any claim relating to such Losses (subject to reimbursement to the limited extent provided in accordance with this Section 16.38.3(e)), but such negotiations or defense shall be controlled by counsel to the Indemnifying Party.
(c) EXCEPT AS PROVIDED IN SECTION 8.3(e), the Indemnifying Party shall not be entitled liable for payments relating to appoint lead and the resolution of any local counsel dispute or any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not, in the defense of the any such Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claimClaim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgmentjudgment or award, or enter into any settlement, except in either event with the prior consent of each Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. To the extent any Indemnified Party declines to consent to a bona fide offer of settlement or otherwise dispose compromise, the Indemnifying Party shall continue to defend, but the amount of such Damages, on such terms as offer shall be the limit of the Indemnifying Party's liability with respect to such claim, action or proceeding with respect to the Indemnified Party that declined such offer. Notwithstanding the foregoing, the Indemnifying Party shall not, without the Indemnified Party's written consent, (which consent may be withheld in its reasonable discretion, will deem appropriate (provided, however that such terms shall the sole and absolute discretion of the Indemnified Party) resolve any dispute or settle or compromise any claim regarding Losses from a Third Party Claim or consent to entry of any judgment which would impose an injunction or other equitable relief upon the Indemnified Party or which does not include a complete and as an unconditional term thereof the release by the claimant or the plaintiff of the Indemnified Party from all liability with in respect thereto)of any such Losses.
(d) The failure to give notice of a claim under this Article VIII shall not release the Indemnifying Party of its obligations under this Article VIII, and will transfer except to the extent of the actual harm suffered thereby.
(e) In the event the Indemnifying Party fails after notice from the Indemnified Party to timely undertake negotiation of any dispute or defend, contest or otherwise protect against any claim or suit with respect to a Third Party Claim, and to so notify the Indemnified Party, the Indemnified Party may, but will not be obligated to, defend, contest or otherwise protect against the same, and make any compromise or settlement thereof and recover the entire costs thereof from the Indemnifying Party, including reasonable attorneys' and experts' fees, disbursements and all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal paid as a result of such claim prior to or suit or the time compromise or settlement thereof. The Indemnified Party shall cooperate and provide such payments become due by assistance as the Indemnified Party. With respect to all other Damages Indemnifying Party may reasonably request in connection with Third Party claims, where the Indemnifying Party has assumed negotiation of any dispute and the defense of the Third Party claim in accordance with this Section 16.3, matter subject to indemnification and the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of shall reimburse the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested 's reasonable costs incurred thereafter in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded and assistance.
(f) Notwithstanding anything to the Indemnifying Party tocontrary contained herein, and reasonable retention by neither Seller nor the Indemnified Party of, records and information that are reasonably relevant Company shall be entitled to such Third Party claim, and making employees and agents available on indemnification hereunder for any Losses to the extent it has received a mutually convenient basis credit therefor pursuant to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.Article V.
Appears in 1 contract
Sources: Contribution Agreement (General Growth Properties Inc)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a Any claim for which indemnification may be sought indemnity pursuant to this Article 16. In case any proceeding Clause 11.1 above (including on account of any governmental investigationThird Party Claim) (“Indemnity Claim”) shall be instituted involving made by the Purchaser by delivering a notice in writing (“Indemnity Notice”) to the Indemnifying Party (which notice shall include all necessary details with respect to the Loss in relation to the Indemnity Claim made in the Indemnity Notice, to the extent available with the Indemnified Party). Provided that a delay in issuing an Indemnity Notice shall not relieve the Indemnifying Parties from their obligation to indemnify and hold harmless the Indemnified Parties in respect of any Indemnity Event. In the event the Indemnifying Party is acceptable to indemnification amount provided under the Indemnity Notice and/or Third Party Claim Notice, then the Indemnifying Party shall pay the Indemnified Party such amount as specified in the Indemnity Notice and/or Third-Party Claim Notice no later than 30 (thirty) Business Days from the date of such notice.
(b) If the Indemnifying Party objects to the indemnification of an Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such any Indemnity Claim under the Indemnity Notice and/or Third Party Claim Notice (except that the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and shall ensure that it shall at all times ensure that the Indemnified Party shall promptly meet Parties are not required to discuss how to respond to any claims that are the subject matter go out of such proceeding. At its optionpocket in accordance with Clause 11.5), the Indemnifying Party may assume the defense of any shall, within 15 (fifteen) Business Days, or such lesser period as available to provide a response under a Third Party claim subject Claim, as the case may be, after receipt by the Indemnifying Party of the Indemnity Notice and/or Third Party Claim Notice, deliver to indemnification as provided for in this Section 16.3 by giving the Purchaser a written notice to such effect, enclosing in reasonable detail the Indemnified Party within ** basis for such objection and documentary support reasonably necessary to substantiate the objection (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time PeriodIndemnity Objection”); . Any dispute in relation to the Indemnity Objection shall be settled in accordance with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extensionprocedure set out in Clause 22.
(c) after In the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which event the Indemnifying Party expressly agrees does not issue an Indemnity Objection within time period stipulated in writing that, as between the Indemnifying Party and the Indemnified PartyClause 11.7(b) above, the Indemnifying Party shall be solely obligated deemed to satisfy have accepted its liability in respect of such Indemnity Notice and/or Third-Party Claim Notice and discharge forthwith pay the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if amount as specified in the Litigation Conditions are not satisfiedIndemnity Notice and/or Third-Party Claim Notice no later than 15 (fifteen) days from the date of expiry of the aforementioned time period stipulated in Clause 11.7(b).
(d) If the Loss pertaining to the Indemnity Claim has been sustained, incurred and suffered by written notice the Group SPVs, then the Indemnified Party shall have the option to require the Indemnifying Party within to make payment of the Election Time Period. If Indemnity Claim (in full or in part) either to the Indemnified Party fails and/or to promptly provide an Indemnification the concerned Group SPV, provided that the total amount of payment of the Indemnity Claim Notice, and such failure materially prejudices the defense shall not be increased solely on account of exercise of such claimoption by the Indemnified Party. Provided further if the Loss pertaining to an Indemnity Claim has been sustained, incurred and suffered by an RG SPV prior to the RG Closing, then the Indemnifying Party shall only be relieved of its responsibility required to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense make payment of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable Indemnity Claim to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsrelevant RG SPVs.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Master Share Purchase Agreement (Azure Power Global LTD)
Indemnification Procedure. i(a) Each Party This Section 8.3 shall notify the other in the event it becomes aware of a claim for not apply to Losses relating to Taxes, which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving governed by Section 9.3.
(b) Promptly after the discovery of Losses by a Buyer Indemnified Party or any other Party in respect of which indemnity may be sought pursuant or Person entitled to this Article 16such indemnification (each, such Party (the an “Indemnified Party”), including notice of any claim by a third party described in Section 8.3(d) which might give rise to indemnification hereunder, the Indemnified Party shall promptly notify deliver a certificate (a “Certificate”) to the other Person or Persons that are required to indemnify such Indemnified Party under this Section 8 (such indemnifying party, the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Such Certificate shall:
(i) state that the Indemnified Party may have incurred, or reasonably anticipates that it will incur, liability for Losses for which such Indemnified Party is entitled to indemnification pursuant to this Agreement; and
(ii) specify in reasonable detail each individual item of Losses included in the amount so stated, the date such item was discovered, the basis for any anticipated liability and the nature of the misrepresentation, inaccuracy or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled under Section 8.2 of this Agreement.
(c) In case the Indemnifying Party and shall object to the indemnification of an Indemnified Party shall promptly meet to discuss how to respond to in respect of any claim or claims that are the subject matter of such proceeding. At its optionspecified in any Certificate, the Indemnifying Party may assume shall, within 30 days after receipt by the defense Indemnifying Party of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Certificate, deliver to the Indemnified Party within ** (or until a written notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified PartyParty shall, within the 30-day period beginning on the date of receipt by the Indemnified Party of such written objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Periodhave so objected. If the Indemnified Party fails and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly provide an Indemnification Claim Noticeprepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then such dispute shall be settled by arbitration in New York, New York in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. There shall be three arbitrators, one to be chosen by each Party directly at will, and the third arbitrator to be selected by the two arbitrators so chosen. Each arbitrator shall be an attorney (i) whose primary practice area comprises buyouts and takeovers, (ii) with at least fifteen years of practice experience and (iii) that is a partner of a law firm consisting of at least 200 attorneys. Each Party shall pay the fees of the arbitrator he or it selects and of his, her or its own attorneys and the expenses of his, her or its witnesses, and all other fees and costs shall be borne equally by the parties. Judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction and no Party shall object to the entry of such failure materially prejudices award.
(d) Promptly after the assertion by any third party of any claim against any Indemnified Party that, in the judgment of such Indemnified Party, may result in the incurring by such Indemnified Party of Losses for which such Indemnified Party would be entitled to indemnification pursuant to this Agreement, such Indemnified Party shall deliver to the Indemnifying Party a written notice describing in reasonable detail such claim and such Indemnifying Party may, at its option, assume the defense of the Indemnified Party against such claim (including the employment of counsel, who shall be reasonably satisfactory to such Indemnified Party) and the payment of expenses. An Indemnified Party shall have the right to employ separate counsel in any such action or claim and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (x) the Indemnifying Party shall have failed, within a reasonable time after having been notified by the Indemnified Party of the existence of such claim as provided in the preceding sentence, to assume the defense of such claim, then (y) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party or (z) the named parties to any such action (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party and such Indemnified Party shall have been advised in writing by such counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party, but the assertion of which would be adverse to the interests of the Indemnified Party. No Indemnifying Party shall be relieved of its responsibility liable to indemnify any Indemnified Party for any settlement of any such action or claim effected without the Indemnified written consent of the Indemnifying Party.
ii) Upon assuming , but if settled with the defense written consent of the Indemnifying Party, or if there be a Third Party claim final judgment for the plaintiff in accordance with this Section 16.3any such action, the Indemnifying Party shall be entitled indemnify and hold harmless each Indemnified Party from and against any loss or liability by reason of such settlement or judgment.
(e) Claims for Losses specified in any Certificate to appoint lead and any local counsel which an Indemnifying Party shall not object in the defense writing within 30 days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the Third Party claim. Should nature described in Section 8.3(c), claims for Losses the validity and amount of which have been the subject of judicial determination as described in Section 8.3(c), claims for Losses the validity and amount of which shall have been the subject of a final judicial determination, or shall have been settled with the consent of the Indemnifying Party assume party, as described in Section 8.3(d), and continue claims for Losses that are determined in accordance with Section 8.3(d) are hereinafter referred to as “Agreed Claims”. Within thirty (30) Business Days after the defense determination of a Third Party claim, except as otherwise set forth in this Section 16.3the amount of any Agreed Claims, the Indemnifying Party will not be liable shall pay to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject an amount equal to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent Agreed Claim by wire transfer in immediately available funds to the entry of any judgment, enter into any settlement bank account or otherwise dispose of such Damages, on such terms as the Indemnifying Party, accounts designated in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention writing by the Indemnified Party of, records and information that are reasonably relevant not less than three Business Days prior to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationpayment.
Appears in 1 contract
Indemnification Procedure. i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); Claim with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as respect to which the Indemnifying Party expressly agrees in writing thatclaims indemnification; provided, as between however, that failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations under this Article 10, unless such failure or delay actually and demonstrably prejudices the Indemnifying Party’s ability to effectively defend such Claim. Upon receipt of notice from the Indemnified Party, the Indemnifying Party shall be solely obligated entitled to satisfy and discharge the claim participate in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claimClaim, then and if each of the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
iiconditions set forth in clauses (a) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3through (c) below is satisfied, the Indemnifying Party shall be entitled to appoint lead and any local counsel in assume the defense of such Claim, and in the Third Party claim. Should the Indemnifying Party assume and continue the defense case of a Third Party claim, except as otherwise set forth in this Section 16.3such an assumption, the Indemnifying Party will not be liable shall have the authority to the Indemnified Party for any legal expenses subsequently incurred by negotiate, compromise, and settle such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, Claim (provided that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of shall not settle any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written Claim without consent of the Indemnified Party, not to be unreasonably withheld or delayed., unless such settlement (i) includes a full and complete release of the Indemnified Party and its Representatives by the claimant, (ii) does not include an admission of guilt or responsibility of the Indemnified Party, and (iii) does not include any non-monetary conditions that would be binding on Indemnified Party);
iv(a) The Indemnifying Party that has assumed selected counsel to handle the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without reasonably acceptable to the written consent of such Indemnifying Indemnified Party. ;
(b) The Indemnified Party will does not admit any liability with respect togive the Indemnifying Party notice, or settle, compromise or discharge, any Third Party claim without first offering which shall be given within sixty (60) Days of the Indemnified Party’s notice to the Indemnifying Party the opportunity to assume the defense of the Third Claim that, in the exercise of its reasonable discretion, matters of policy or a conflict of interest make separate representation by the Indemnified Party’s own counsel advisable;
(c) The Indemnifying Party claim in accordance with this Section 16.3. If establishes to the reasonable satisfaction of the Indemnified Party that the Indemnifying Party chooses has (and shall continue to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof have) adequate financial resources to satisfy and will furnish discharge such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationClaim.
Appears in 1 contract
Sources: Power Purchase Agreement
Indemnification Procedure. i(a) Each Promptly following receipt by an Indemnified Party shall notify the other in the event it becomes aware of notice by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding third party (including any governmental Governmental Entity) of any complaint, dispute, claim, audit, investigation, action or proceeding (“Third-Party Claim”) shall be instituted involving any with respect to which such Indemnified Party in respect of which indemnity may be sought pursuant entitled to this Article 16, such Party (the “Indemnified Party”) shall promptly notify receive payment from the other Party for any Purchaser Losses or any Seller Losses (as the case may be), such Indemnified Party shall promptly provide written notice thereof to Purchaser or Sellers, as the case may be (the “Indemnifying Party”), provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such claim only if, and only to the extent that, (i) such failure to so notify the Indemnifying Party results in writing the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (an “Indemnification Claim Notice”)ii) the Indemnifying Party is materially prejudiced by the failure to promptly receive such notice. The Indemnified Party shall promptly provide to the Indemnifying Party all information and documentation reasonably requested by the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with 30) days after receipt of written notice from the Indemnified Party being obligated of such Third-Party Claim to make all reasonable efforts to obtain any assume the defense of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim NoticeThird-Party Claim, solely for claims, (i) that solely seek monetary damages and (ii) as to which but only if the Indemnifying Party expressly agrees in writing thatwaives the application of the Purchaser Cap or the Seller Cap, as between the applicable, as it relates to such Third-Party Claim. The Indemnifying Party and shall also have the right to assume the defense of such Third-Party Claim at any time after such 30-day period upon written notice delivered to the Indemnified Party, but only if the Indemnifying Party shall be solely obligated waives the application of the Purchaser Cap or the Seller Cap, as applicable, as it relates to satisfy and discharge such Third-Party Claim; provided that such later assumption of the claim in full (defense would not materially impair the matters described in (i) and (ii), rights of the “Litigation Conditions”). The Indemnified Party may assume responsibility for or the pending defense of such defense if the Litigation Conditions are not satisfied, by written notice to Third-Party Claim. If the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices assumes the defense of such claimThird-Party Claim, then the Indemnifying Party shall be relieved of its responsibility employ counsel reasonably satisfactory to indemnify the Indemnified Party.
ii) Upon assuming , with the fees and disbursements of such counsel being paid by the Indemnifying Party, and the Indemnifying Party shall have the right to settle such matter (except as set forth below in this Section 11.3). Notwithstanding the foregoing, Purchaser shall have the sole discretion to control the defense of a Third matter as it relates to Purchaser (i) in the event of a criminal matter involving Purchaser or an equitable claim against Purchaser, (ii) if the Third-Party Claim is made by a supplier, customer or employee of Seller, or (iii) if the Third-Party Claim includes material claims for which the Purchaser provides Sellers with written notice that it is not entitled to and will not claim indemnification to the extent that it is not practical to separately defend such claims. Purchaser shall defend any such Third-Party Claim in a commercially reasonable manner and in the same manner as if it were not entitled to indemnification hereunder. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the Third-Party Claim on the terms provided above within such thirty (30) day period or to employ counsel reasonably satisfactory to the Indemnified Party, then any Losses subject to indemnification under this Agreement shall include the reasonable fees and disbursements of counsel for the Indemnified Party to the extent incurred before any later assumption of such defense by the Indemnifying Party in accordance with this Section 16.311.3. In any Third-Party Claim for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such matter, shall have the right to participate in such matter and to retain its own counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party shall be entitled to appoint lead and any local counsel in or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of any matter the Third defense of which it is maintaining and shall cooperate in good faith with each other with respect to the defense of any such matter, including the Indemnified Party claim. Should providing the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable with access to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) books, records and personnel during reasonable hours under the engagement thereof has been specifically requested by the Indemnifying Party in writing, or circumstances.
(b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the If an Indemnifying Party has assumed the defense of the Third any Third-Party claim Claim in accordance with this Section 16.311.3, then the Indemnifying Indemnified Party will have authority to shall not settle or compromise such Third-Party Claim or consent to the entry of any judgment with respect thereto; provided, however, that the Indemnified Party may settle or compromise such Third-Party Claim or consent to the entry of a judgment with respect thereto as it relates to the Indemnified Party without the prior written consent of the Indemnifying Party if the Indemnified Party waives its right to be indemnified under this Agreement in writing and satisfies all obligations of the Indemnified Party under such settlement, compromise or judgment. If the Indemnifying Party has not assumed the defense of a Third Party Claim in accordance with this Section 11.3 then the Indemnified Party shall not settle or compromise such Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (which may not be unreasonably withheld or delayed), enter into any settlement unless (i) such settlement, compromise or otherwise dispose consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of such Damagesclaim and provided such release is not conditioned on the Indemnifying Party indemnifying the Indemnified Party, provided it obtains or (ii) the Indemnified Party waives its right to be indemnified under this Agreement in writing. Notwithstanding anything to the contrary set forth herein, the amount of such settlement, compromise or consent shall in no event determine the amount of Losses incurred by an Indemnified Party and the Indemnifying Party shall only be obligated to indemnify the Indemnified Party for Losses with respect to such Third-Party Claim to the extent such indemnification would have been required by this Article XI absent such settlement. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, Party (which may not to be unreasonably withheld or delayed), settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of such claim, (y) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
iv(c) The Indemnifying Party that has assumed In the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by event an Indemnified Party that is reached without the claims a right to payment pursuant hereto (whether or not resulting from a Third-Party Claim), such Indemnified Party shall send written consent notice of such claim to the appropriate Indemnifying Party (a “Notice of Claim”). Such Notice of Claim shall specify in reasonable detail the basis for such claim and the facts and circumstances regarding such claim to the extent known by the Indemnified Party. The failure by any Indemnified Party will so to notify the Indemnifying party shall not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to relieve the Indemnifying Party the opportunity from any liability that it may have to assume the defense of the Third such Indemnified Party with respect to any claim in accordance with made pursuant to this Section 16.3. If 11.3(c) except to the extent the Indemnifying Party chooses is materially prejudiced by the failure to defend receive such notice, it being understood that notices for claims in respect of a breach of a representation or prosecute any Third warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 11.4. In the event the Indemnifying Party does not agree in writing to indemnify the Indemnified Party with respect to such claim, the Indemnified Party will cooperate in shall attempt to establish the defense or prosecution thereof merits and will furnish amount of such recordsclaim (by litigation) and, information and testimony, provide such witnesses including to within five (5) Business Days following the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as final judicial determination from which no appeal may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to made of the merits and amount of the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant Party’s obligation to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse indemnify the Indemnified Party for all its reasonable out-of-pocket expenses incurred Losses under this Agreement, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in connection with an amount equal to such cooperationclaim as determined hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Indemnification Procedure. i) 14.3.1. Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16XIV. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16XIV, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 14.3 by giving written notice to the Indemnified Party within ** thirty (30) days or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** sixty (60) days (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) extension after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, claims (ia) that solely seek monetary damages and (iib) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (ia) and (iib), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) 14.3.2. Upon assuming the defense of a Third Party claim in accordance with this Section 16.314.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the ** Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. **** Indicates that the amount of information omitted was a page or more in length, and such information has been filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions defense of a Third Party claim, except as otherwise set forth in this Section 16.314.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.314.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 14.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) 14.3.3. Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however however, that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.314.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, ; provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld withheld, conditioned or delayed.
iv) 14.3.4. The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 14.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.314.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation. ** Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. **** Indicates that the amount of information omitted was a page or more in length, and such information has been filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions
14.3.5. Each Party shall maintain, at its cost, a program of insurance and/or self-insurance against liability and other risks associated with its activities and obligations under this Agreement, including its Clinical Trials, the Commercialization of any Licensed Products and its indemnification obligations hereunder, in such amounts, subject to such deductibles and on such terms as are customary for the activities to be conducted by it under this Agreement. All insurance required by this Section 14.3.5 shall be maintained during the Term and each Party shall, from time to time, provide copies of certificates of such insurance to the other Party upon request. Further, each Party shall list the other Party as an additional insured on all insurance policies. All insurance required by this Section 14.3.5 shall be maintained for at least three (3) years following expiration or termination of this Agreement.
Appears in 1 contract
Sources: Development, Commercialization and License Agreement (Cell Therapeutics Inc)
Indemnification Procedure. iIf any party entitled to --- -------------------------- indemnification (the "Indemnified Party") Each Party shall notify the other in the event it becomes aware of receives a claim from a third party or asserts a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party against another party or the other parties (the “Indemnified Party”"Indemnifying Party(ies)") shall promptly notify under this Agreement (a "Claim"), then the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the notify each Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for thereof in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposewriting; provided, however, that such engagement will be at no delay on the part of the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by Party in notifying any Indemnifying Party shall relieve the Indemnifying Party in writing, or from any obligation hereunder unless (band then solely to the extent) the Indemnifying Party has failed thereby is prejudiced. Any Indemnifying Party shall have the right to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case defend the Indemnified Party will control against a Claim with counsel of its choice reasonably satisfactory to the defense)Indemnified Party, or (c) so long as the Indemnifying Party no longer satisfies notifies the Litigation Conditions.
iiiIndemnified Party in writing within ten (10) Subject to the Litigation Conditions being satisfied, days after the Indemnifying Party will have has been given notice of such Claim by the Indemnified Party. So long as the Indemnifying Party is conducting the defense of the Claim, as set forth above (A) the Indemnified Party may retain separate co-counsel at its sole right to cost and expense and participate in the defense of the Claim, (B) the Indemnified Party shall not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the Claim without the prior written consent of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate Party (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect theretonot to be withheld unreasonably), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where (C) the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to shall not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose of such Damages, provided it obtains with respect to a third party Claim without the prior written consent of the Indemnified Party, Party (which consent shall not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Partywithheld). The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to Both the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, and the Indemnified Party will shall cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested fully with one another in connection with the defense, compromise, or settlement of any such Third Party claim. Such cooperation will include access during normal business hours afforded Claim or action, including, without limitation, by making available to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional other all pertinent information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all witnesses within its reasonable out-of-pocket expenses incurred in connection with such cooperationcontrol.
Appears in 1 contract
Sources: Stock Purchase Agreement (Weitzer Homebuilders Inc)
Indemnification Procedure. i3.1. All requests of indemnification from either Indemnified Parties, pursuant to Clause 2.1, shall observe and shall be resolved with observance to the following procedure:
(a) Each In the event of any claim or litigation on the part of Vivax’s minority shareholders or Authorities against or before either Indemnified Parties, by virtue of which the Indemnified Party(ies) under consideration may plead for indemnification pursuant to Clause 2.1 ("Claim of Vivax’s Minority Shareholder or Authority”), the corresponding Indemnified Party shall deliver the Claim Notice in reasonable advance to the Indemnifying Party, but anyway always until the half of legal term to submit the defense. NET shall notify the other in Indemnified Party, as soon as possible, within the event it becomes aware of a claim for which indemnification may be sought Term to Indemnify informing if NET challenges its liability towards the Indemnified Party, pursuant to this Article 16. In case any proceeding Clause 2.1, or if NET prefers that the Indemnified Party under consideration proceeds with its defense, provided that all related costs and expenses related to said defense are advanced to the Indemnified Party by the Indemnifying Party, as set forth in Clause 3.4.
(including any governmental investigationi) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (Should NET inform the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet , within Term to discuss how Indemnify that NET intends to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** in relation to Claim of Vivax’s Minority Shareholder or Authority, pursuant to this Clause 3.1(a), NET shall be entitled, exclusively at its expenses, to conduct the defense in said Claim of Vivax’s Minority Shareholder or Authority as long as by means of appropriate proceedings, on a diligent and reasonable manner. NET may reach an agreement during the defense of Claim of Vivax’s Minority Shareholder or Authority at its exclusive discretion (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between should such agreement result in the Indemnifying Party and assumption of obligations not only of monetary nature, which shall be fully indemnified by NET to the Indemnified Party, the adhesion to such agreement shall be subject to express authorization of the Indemnified Party, which may neither be unreasonably denied nor postponed). NET shall have total control over such defense and proceedings, including any agreement (except as provided for above); however, except that the Indemnified Party may at its expenses and at its exclusive discretion, at any time prior to the NET’s notice aforementioned, submit answers, petitions or pleadings or practice any other acts that the Indemnified Party reasonably believes in good faith to be necessary to protect its interests without damaging the Indemnifying Party; except that if requested by NET at its expenses, the Indemnified Party shall be solely obligated reasonably cooperate with NET and its attorneys to satisfy challenge any Claim of Vivax’s Minority Shareholder or Authority that NET decides to challenge, of if appropriate and discharge provided that in relation to the Claim of Vivax’s Minority Shareholder or Authority under consideration, to submit any type of counterclaim to the Person which brought the Claim of Vivax’s Minority Shareholder, or any other form of claim in full against any Person (which is not the matters described in (i) and (ii), the “Litigation Conditions”Indemnified Party or any of its affiliates). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfiedretain an attorney, by written notice different from Indemnifying Party’s attorney in order to the Indemnifying Party within the Election Time Period. If represent the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense or agreement of the Third Party claim. Should the Indemnifying Party assume and continue the defense any Claim of a Third Party claimVivax’s Minority Shareholder or Authority assumed by NET pursuant to this Clause 3.1(a)(i), except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) attorney shall not assume the engagement thereof has been specifically requested by the Indemnifying Party in writing, control for defense or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto)agreement, and will transfer that NET shall bear reasonable costs and expenses related to retain said attorney separately if:
(x) in the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages best judgment and in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent good faith of the Indemnified Party, it is advisable to retain other attorneys by force of potential or existing conflict of interests between NET and the Indemnified Party, so that the representation of both parties may be deemed not appropriate in comparison with applicable professional conduct rules, or
(y) both NET and the Indemnified Party are parties involved in said Claim of Vivax’s Minority Shareholder or Authority and the Indemnified Party decides in good faith and on a reasonable basis, that the arguments to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will prepared thereby may not be liable for any settlement or other disposition of any Damages submitted by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering Without prejudice to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimaforementioned, the Indemnified Party will cooperate may intervene or assume the control of defense or agreement related to a Claim of Vivax’s Minority Shareholder or Authority that NET has previously assumed, should the Indemnified Party waive on an irrevocable basis to its indemnification right provided for in Clause 2.1 in relation to said Claim of Vivax’s Minority Shareholder or Authority. By means of commencement of a judicial, administrative or arbitration proceeding related to a Claim of Vivax’s Minority Shareholder or Authority against either Indemnified Parties, said Indemnified Party may, at its exclusive discretion, to implead the Indemnifying Party or otherwise, at the exclusive discretion of the Indemnified Party, to determine that NET intervenes in the defense proceedings, whether in the capacity as joint party, assistant, any other type of Third Parties Intervention.
3.2. To the extent that it is necessary for the purposes of NET’s compliance with obligations assumed herein, NET shall deposit amounts or prosecution thereof and will furnish such recordsindicate assets for attachment in administrative or judicial proceedings, information and testimony, provide such witnesses including if so required pursuant to the extent possiblelaws and/or administrative or judicial decision rendered in the course of a proceeding, former employees which may result in Losses for the Indemnified Party or if it is necessary for presentation or continuity of defense in said proceeding.
3.3. The payments overdue by this Agreement on account of administrative or judicial decision only shall be due when appeal with suspensive effects or final and attend such conferencesunappealable decision are not acceptable therein. Further payments provided for in Clause 3 shall be due upon Indemnified Party’s request pursuant to this Agreement and NET, discovery proceedingsin any case of payment pursuant to this Clause 3.3, hearingsshall be previously notified to provide the corresponding payment within no later than ten (10) days after the date on which these payments become overdue, trials and appeals should reduced payment term is not required to the Indemnified Party, assumption in which the latter shall be observed.
3.3.1. Payments owed by NET to each Indemnified Party shall be made by (i) means of transfer of funds immediately available, deposited in account or bank accounts of the corresponding Indemnified Party, or as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded previously notified to the Indemnifying Party, or as instructed by said Indemnified Party to, and reasonable retention or (ii) paid directly to the corresponding Person to be appointed by the Indemnified Party ofunder consideration when (a) it is commercially acceptable to said Indemnified Party, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available (b) legally enforceable or (c) more efficient on a mutually convenient basis tax basis.
3.2.1. Should payments owed by NET do not occur within the term mentioned in Clause 3.3. above, the Parties agree that, on account of sanction, the effects of the Commitment Instrument and Ancillary Obligations and Other Covenants entered into between NET and ▇▇▇▇▇▇▇, Shareholders’ Agreement of Vivax, entered into between NET and Brasil TV a Cabo Participações S.A. shall be suspended until effective payment. The suspension of effects referred to provide additional information and explanation by this clause shall occur legally, irrespective of any material provided hereundernotification.
3.2.2. The Indemnifying Party will reimburse Parties clarify that the suspension referred to by Clause 3.3.1 above shall also include the board members and officers appointed by NET prior to the suspension period, pursuant to Shareholders’ Agreements of BTVC and Vivax, who shall be immediately removed from office and replaced by members appointed by ▇▇▇▇▇▇▇, until the total performance of the obligations due pursuant to the Indemnification Agreement. For a correct application of this sanction, NET undertakes to vote under the scope of Vivax and BTVC so that to replace the board members and officers of these companies appointed thereby. Once performed the obligations of this Indemnification Agreement, ▇▇▇▇▇▇▇ undertakes to vote under the scope of Vivax and BTVC in order to return to the status quo ante no regarding the board members and officers of these companies.
3.2.3. The sanction provided for in clauses 3.3.1 and 3.3.2 above does not exclude eventual losses and damages the Indemnified Parties may have incurred, due to the lack of timely payment regarding the amounts owed by NET.
3.2.4. This Indemnification Agreement shall be registered at BTVC’s headquarters and the vote provisions of this Clause 3.3 shall modify the Shareholders’ Agreement of BTVC when necessary and only during the suspension period aforementioned. BTVC’s shareholders undertake to vote in BTVC and Vivax pursuant to this clause 3.3, should the suspension become effective.
3.4. Should NET shall provide any payment or advanced payment (clause 3.1. (a), final part) pursuant to this Agreement (the "Required Payment"), NET shall pay to the Indemnified Party under consideration the Required Payment without discounts or deductions from counterclaims or defenses, and without any kind of deduction or withholding of any Taxes (so that, if necessary, to withhold by force of the applicable laws, NET shall pay an amount that, after all deductions, discounts or withholdings, be equal to the amount of the Required Payment).
3.4.1. The provisions of clauses 3.3.1 and 3.3.2 shall be applied to this clause.
3.5. All the payments made or overdue pursuant to this Agreement shall be performed in Reais (in the event of payment in foreign currency by the Indemnified Party, the corresponding amount in Reais shall be determined according to the market quotation of such currency at the date of the referred payment).
3.6. If, at any time and for all any reason (including in the event of bankruptcy, insolvency, arrangement with creditors, renegotiation of debts, winding-up or liquidation of NET or in case of appointment of a trustee, sequestrator, judicial trustee, agent or similar, to manage NET or any of its reasonable outassets or properties), any payment received by the Indemnified Party pursuant to this Agreement is cancelled or annulled or shall be otherwise returned by the Indemnified Party, such payment shall not be deemed as performed for the purposes of this Agreement, and this Agreement shall remain effective (or shall be renewed, if necessary), as if the referred payment has not been made.
3.7. Should NET fail to reimburse an Indemnified Party for the Losses within the term set forth herein, NET’s liabilities shall be adjusted according to the variation of General Market Price Index (IGP-of-pocket expenses incurred in connection with such cooperationM) until the date of the effective payment of Losses.
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Sources: Indemnification Agreement (Net Servicos De Comunicacao S A)
Indemnification Procedure. i(a) Each Promptly after receipt by a Purchaser Indemnified Party or a Seller Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which such Indemnified Party may be entitled to receive payment from the other party for any Purchaser Losses or Seller Losses (as the case may be), such Indemnified Party shall notify Purchaser or Sellers within 30 days, whoever is the other appropriate indemnifying party hereunder (the "Indemnifying Party"), of such complaint or of the commencement of such action or proceeding; PROVIDED, HOWEVER, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such claim arising otherwise than under this Agreement and such failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in the event it becomes aware forfeiture by the Indemnifying Party of a claim for which indemnification may be sought pursuant rights and defenses otherwise available to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any the Indemnifying Party in with respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** (20 days thereafter, to assume the defense of such action or until such time provided in any applicable extension proceeding, including the employment of counsel reasonably satisfactory to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to make all reasonable efforts assume the defense of the action or proceeding within such 20-day period, then such Indemnified Party may employ counsel to obtain represent or defend it in any such extension) after action or proceeding and the Indemnifying Party shall pay the reasonable fees and disbursements of such counsel as incurred; PROVIDED, HOWEVER, that the Indemnifying Party shall not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single action or proceeding. In any action or proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party’s receipt , whichever is not assuming the defense of an Indemnification Claim Noticesuch action, solely for claims, (i) that solely seek monetary damages shall have the right to participate in such litigation and (ii) as to which the retain its own counsel at such party's own expense. The Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party shall be solely obligated or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action the defense of which they are maintaining and to satisfy and discharge cooperate in good faith with each other with respect to the claim in full defense of any such action.
(the matters described in (ib) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to If the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming assumes the defense of a Third Party claim in accordance with this pursuant to Section 16.39.3(a), the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the no Indemnified Party for any legal expenses subsequently incurred by may settle or compromise such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit claim or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose judgment with respect to which indemnification is being sought hereunder without the prior written consent of such Damages, on such terms as the Indemnifying Party, in its reasonable discretionunless such settlement, will deem appropriate (providedcompromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim at no cost to the Indemnifying Party. An Indemnifying Party may not, however that without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such terms shall include a complete and settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party's respective Affiliates.
(c) In the event an Indemnified Party shall claim a right to payment pursuant to this Agreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five business days of the agreement or the final judgment (with respect thereto)to litigation and arbitration not subject to further appeal) of the merits and amount of such claim, and will transfer the Indemnifying Party shall pay to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant immediately available funds in an amount equal to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedas determined hereunder.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant agrees to this Article 16. In case any proceeding give prompt notice (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (with the obligation to give notice, the “Indemnified Party”) shall promptly notify to the other Party (the “Indemnifying Party”) of the assertion of any Third Party Claim in writing (an “Indemnification Claim Notice”)respect of which indemnity may be sought under this Agreement, including the amount and other details of such Third Party Claim; provided, however, that the failure of the Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent that the Indemnifying Party shall have been materially prejudiced by such lack of timely and adequate notice. The Indemnifying Party and shall have the right, at its election, to take over the defense or settlement of any such claim at its own expense by giving prompt notice to that effect to the Indemnified Party shall promptly meet to discuss how to respond to any claims Party; provided, however, that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume shall keep the Indemnified Party reasonably informed of the progress of such Third Party Claim. If the Indemnifying Party shall have so assumed the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Partyclaim, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right authorized to consent to a settlement of, or the entry of any judgmentjudgment arising from, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claimsClaim, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, only if (i) such settlement shall be a complete release of the Indemnified Party with respect to such claim, or (ii) there is no finding or admission of any violation of any Legal Requirement or the rights of any Person, and the sole relief provided is monetary damages that are paid in fully by the Indemnifying Party. The prior written consent of the Indemnified Party shall be required for any other settlement or entry of judgment, which shall not to be unreasonably withheld or delayed.
iv. The Indemnified Party shall at all times have the right, at its option and expense, to participate fully in, but not to control, any such defense. If the Indemnifying Party, within thirty (30) The Indemnifying days after receipt of the Indemnified Party’s notice of a Third Party that has assumed Claim, does not give such notice to take over the defense of such Third Party Claim and proceed diligently to defend the Third Party Claim, then the Indemnified Party shall have the right, but not the obligation, to undertake the defense of such Third Party Claim. The Parties shall cooperate in defending any Third Party Claim, and the defending party shall have reasonable access to the books, records and personnel which are pertinent to the defense and which are in the possession or control of the other Party. The Parties agree that any Indemnified Party, at its own expense, may join an Indemnifying Party in any Third Party Claim, as to which any right of indemnity created by this Agreement would or might apply, for the purpose of enforcing any right of indemnity granted to such Indemnified Party pursuant to this Agreement.
(b) Any claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages indemnification made directly by an Indemnified Party and which does not result from a Third Party Claim or action, shall be asserted by prompt written notice submitted in good faith and specifying in reasonable detail the basis for such claim provided, however, that is reached without the written consent failure of such Indemnifying Party. The the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to so notify the Indemnifying Party shall not relieve the opportunity Indemnifying Party of its indemnification obligations hereunder, except to assume the defense extent that the Indemnifying Party shall have been materially prejudiced by such lack of the Third timely and adequate notice. The Indemnifying Party claim in accordance with this Section 16.3shall have a period of 30 days within which to respond thereto. If the Indemnifying Party chooses does not respond within such 30 day period, such Party shall be deemed to defend have accepted responsibility to, and shall promptly make, such payment and shall have no further right to contest the validity of such claim.
(c) In case a Party shall object in writing to any claim or prosecute claims made in any Third notice to recover Losses from the Indemnifying Parties within 30 days after delivery of such notice, the Party claimreceiving such notice (the “Receiving Party”) and the Indemnified Parties shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims. If the Receiving Party and the Indemnified Parties should so agree, a memorandum setting forth any agreement reached by the parties with respect to such claim shall be prepared and signed by both parties. The Indemnified Parties and the Receiving Party shall each be entitled to rely on any such memorandum and take any actions as may otherwise be contemplated in such memorandum.
(d) If no such agreement can be reached after good faith negotiation and prior to 60 days after delivery of notice for claim hereunder, either the Indemnified Parties or the Receiving Party may demand arbitration of the matter unless the amount of the Losses is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration, and in either such event the matter shall be settled by arbitration conducted by one arbitrator mutually agreeable to the Indemnified Parties and the Receiving Party. In the event that, within 30 days after submission of any dispute to arbitration, the Indemnified Parties and the Receiving Party cannot mutually agree on one arbitrator, then, within 15 days after the end of such 30-day period, the Indemnified Parties and the Receiving Party shall each select one arbitrator. The two arbitrators so selected shall select a third arbitrator. If the Receiving Party fails to select an arbitrator during this 15-day period, then the parties agree that the arbitration will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention conducted by one arbitrator selected by the Indemnified Parties. If the Indemnified Parties fails to select an arbitrator during this 15-day period, then the parties agree that the arbitration will be conducted by one arbitrator selected by the Receiving Party.
(e) Any such arbitration shall be held in San Diego County, California, under the rules then in effect of the American Arbitration Association. The arbitrator(s) shall determine how all expenses relating to the arbitration shall be paid, including, the respective expenses of each Party, the fees of each arbitrator and the administrative fee of the American Arbitration Association. The arbitrator or arbitrators, as the case may be, shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator or majority of the three arbitrators, as the case may be, to discover relevant information from the opposing parties about the subject matter of the dispute. The arbitrator, or a majority of the three arbitrators, as the case may be, shall rule upon motions to compel or limit discovery and shall have the authority to impose sanctions, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators or a majority of the three arbitrators, as the case may be, determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification. The decision of the arbitrator or a majority of the three arbitrators, as the case may be, as to the validity and amount of any claim in such Indemnified Parties’ notice shall be final, binding, and conclusive upon the parties to this Agreement. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator(s), and the Indemnified Parties shall be entitled to indemnification as set forth herein. Within 30 days of a decision of the arbitrator(s) requiring payment by one Party ofto another, records and information that are reasonably relevant such party shall make the payment to such Third Party claimother Party.
(f) Judgment upon any award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The forgoing arbitration provision shall apply to any dispute between the Receiving Party, on the one hand, and making employees and agents available any Indemnified Party, on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationother hand, under this ARTICLE 8 hereof.
Appears in 1 contract
Indemnification Procedure. i(a) Each Any indemnified Party shall notify the other in the event it becomes aware of a claim for which seeking indemnification may be sought pursuant to under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16each, such Party (the an “Indemnified Party”) shall shall, within the relevant limitation period provided in Section 9.1, promptly notify upon discovering or identifying the other underlying reasons giving rise to a claim for indemnification give the indemnifying Party or Parties (collectively, the “Indemnifying Party”) in writing written notice (an a “Indemnification Claim Notice”) describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in the Claim Notice the amount or method of computation of the amount of such claim and a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided, that a Claim Notice in respect of any action at law or in equity by or against a third party as to which indemnification will be sought shall be given promptly after the action or suit is commenced and the Indemnified Party shall not make any admissions, enter into any settlement agreements or otherwise make any compromise with such third party prior to the expiration of the thirty (30) day period set forth in Section 9.4(b) below or thereafter in the event the Indemnifying Party has given notice of its election to take over the defense in accordance with Section 9.4(b) below and for so long as such Party diligently pursues such defense (it being agreed 46 that, in the event the Indemnifying Party does not make such election or ceases to diligently pursue such defense, the provisions of Section 9.4(c). ) shall apply).
(b) The Indemnifying Party and Indemnified Party shall promptly meet have the right, at its own cost, to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume participate jointly in the defense of any Third claim or demand in connection with which the Indemnified Party has claimed indemnification hereunder, and, if the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such claim subject or demand, may elect to indemnification as provided for in this Section 16.3 take over the defense of such claim or demand through counsel of its own choosing by giving written notice to so notifying the Indemnified Party within ** thirty (30) days of receipt of the Indemnified Party’s notice of such claim or until demand. If the Indemnifying Party makes such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** an election: (the “Election Time Period”); with i) it shall keep the Indemnified Party being obligated reasonably informed as to make the status of such matter and shall promptly send copies of all reasonable efforts pleadings to obtain any such extension) after the Indemnifying Indemnified Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and ; (ii) as with respect to which any issue involved in such claim or demand, it shall have the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated sole right to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense settle or otherwise dispose of such claimclaim or demand on such terms as it, then the Indemnifying Party in its sole discretion, shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposedeem appropriate; provided, however, that the consent, which consent shall be in its sole discretion, of the Indemnified Party to the settlement or disposition of any claim or demand shall be required if such engagement will be settlement or disposition shall result in any liability (which is not paid at the time of settlement by the Indemnifying Party) to, or equitable relief against, the Indemnified Party’s own expense unless ; and (aiii) the engagement thereof has been specifically requested Indemnified Party shall have the right to participate jointly in the defense of such claim or demand, but shall do so at its own cost not subject to reimbursement under Section 9.2 or Section 9.3.
(c) If the Indemnifying Party does not elect to take over the defense of a claim or demand, the Indemnified Party shall have the right to contest, compromise or settle such claim or demand in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnifying Party to any compromise or settlement of such claim or demand shall be required, which consent shall not be unreasonably withheld or delayed. The costs of defense and any settlement reached shall be borne by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsforegoing.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i(a) Each If any of the Novartis Indemnitees or MPAG Indemnitees (the “Indemnified Parties”) receives written notice of the commencement of any Claim, and such Indemnified Party shall notify the other in the event it becomes aware of a claim for which intends to seek indemnification may be sought pursuant to this Article 16. In case any proceeding 11, the Indemnified Party shall promptly provide Novartis (including any governmental investigationif such Indemnified Party is a Novartis Indemnitee) shall be instituted involving any or MPAG (if such Indemnified Party in respect is a MPAG Indemnitee) written notice of which indemnity may be sought pursuant to this Article 16such Claim, and such Party (the “Indemnified Party”) shall promptly notify provide the other Party (the “Indemnifying Party”) in writing with written notice of such Claim within [***] of its receipt of notice from the Indemnified Party, stating the nature, basis and the amount thereof, to the extent known, along with copies of the relevant documents evidencing such Claim and the basis for indemnification sought. Failure of the Indemnified Party to give such notice within the time frame specified will not relieve the Indemnifying Party from its indemnification obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced thereby.
(an “Indemnification Claim Notice”). b) The Indemnifying Party and Indemnified Party shall promptly meet will have [***] from receipt of any such notice of a Claim to discuss how give notice to respond to any claims assume the defense, appeal or settlement proceedings thereof; provided that are the subject matter of such proceeding. At its option, the Indemnifying Party may shall only be permitted to assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, a Claim if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) it admits that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility it is liable to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense respect of the Third Party claimClaim. Should If notice to the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise effect set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested immediately preceding sentence is given by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfiedParty, the Indemnifying Party will have the sole right to consent to assume the entry of any judgmentdefense, enter into any appeal or settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release proceedings of the Indemnified Party from all liability against the Claim with respect thereto)counsel of its choice; provided, and will transfer that the Indemnifying Party may not assume the defense, appeal or settlement of a Claim: (i) involving any criminal proceeding, action, indictment, allegation or investigation; (ii) in which relief other than monetary damages is sought; or (iii) if the Claim relates to taxes. In addition, the Indemnified Indemnifying Party all amounts which said Indemnified Party will be liable may not maintain the defense of a Claim if it has failed to pay pursuant to defend such settlement or disposal of such claim prior to the time such payments become due by the Indemnified PartyClaim in good faith. With respect to all other Damages in connection with Third Party claims, where So long as the Indemnifying Party has assumed the defense defense, appeal or settlement proceedings of the Third Party claim Claim in accordance with this Section 16.3herewith, [(x) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense, appeal or settlement proceedings of the Claim, and (y) the Indemnifying Party will shall not admit to any wrongdoing by the Indemnified Party].
(c) The Indemnifying Party shall have authority the right to consent to settle any Claim for which: (i) the entry Indemnifying Party is responsible for [***] of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it the applicable Losses under this Article 11; and (ii) the Indemnifying Party obtains the prior written consent a full release of the Indemnified Party, Party with respect to such Claim or to which settlement the Indemnified Party consents in writing (such consent not to be unreasonably withheld withheld, conditioned or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for ). As to any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability Claim with respect to, or settle, compromise or discharge, any Third Party claim without first offering to which the Indemnifying Party the opportunity to does not assume the defense control of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimdefense, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to afford the Indemnifying Party toan opportunity to participate in such defense, at its cost and expense, and reasonable retention by will consult with the Indemnifying Party prior to settling or otherwise disposing of any of the same. The Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse act in good faith in responding to, defending against, settling or otherwise dealing with Claims. The Indemnified Party and the Indemnifying Party will also cooperate in any such defense, appeal or settlement proceedings, and give each other reasonable access to all information relevant thereto. Whether or not the Indemnifying Party has assumed the defense, appeal or settlement proceedings with respect to a Claim, such Indemnifying Party will not be obligated to indemnify the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with (1) any settlement entered into or any judgment that was consented to without the Indemnifying Party’s prior written consent (such cooperationconsent not to be unreasonably withheld, conditioned or delayed) or (2) any Losses not indemnifiable pursuant to this Article 11.
Appears in 1 contract
Sources: Option and Equity Rights Agreement (Molecular Partners Ag)
Indemnification Procedure. i(a) Each Party shall notify Promptly after the other in the event it becomes aware of a claim for which person seeking indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Section 9.2 (the “Indemnified Party”) has knowledge of any event or circumstance, including any written claim by a third party, that would reasonably be expected to give rise to indemnification under this Article IX (a “Third-Party Claim”) (but in any event not later than 10 Business Days prior to the time any response to the asserted claim is required), the Indemnified Party shall promptly notify deliver to the other Party person from which indemnification is sought (the “Indemnifying Party”) in writing a notice (an a “Indemnification Claim Notice”). The ) setting forth in reasonable detail a description of the matter giving rise to indemnification hereunder, including, if known, the anticipated Losses; provided, however, that any failure or delay by the Indemnified Party in delivering a Claim Notice to the Indemnifying Party and shall not affect the Indemnified Party’s right to indemnification under this Article IX, except to the extent the Indemnifying Party has been materially prejudiced by such failure or delay.
(b) In case the Indemnifying Party shall object to the indemnification of an Indemnified Party shall promptly meet to discuss how to respond to in respect of any claims that are the subject matter of such proceeding. At its optionclaim or in any Claim Notice, the Indemnifying Party, as soon as practicable after receipt by the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Claim Notice, shall deliver to the Indemnified Party within ** (or until a written notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, within the 30-day period beginning on the date of receipt by the Indemnified Party of such written objection, shall attempt to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected, and any agreement reached regarding their respective rights with respect to any of such claims shall be solely obligated to satisfy and discharge set forth in a written agreement signed by the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Periodparties. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility are unable to indemnify agree as to any particular item or items or amount or amounts, then either the Indemnified PartyParty or the Indemnifying Party may submit such dispute to a court of competent jurisdiction in accordance with this Agreement.
ii(c) Upon assuming After receipt by the defense Indemnifying Party of a Claim Notice of a Third Party claim in accordance with this Section 16.3Claim, the such Indemnifying Party shall be entitled to appoint lead and any local counsel in may, at its option, assume the defense of the Third Indemnified Party claim. Should against such claim (including the employment of counsel of the Indemnifying Party assume and continue the defense of a Third Party claimParty’s choosing). The Indemnified Party, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, shall cooperate in its reasonable discretionthe compromise of, will deem appropriate (providedor defense against, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability claim. Except with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed.
iv) The , no Indemnifying Party that has shall settle or compromise any Third Party Claim or permit a default judgment or consent to an entry of judgment unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full release of the Indemnified Party with respect to the claim(s) being settled and (iii) does not contain any admission or finding of wrongdoing on behalf of the Indemnified Party. Until the Indemnifying Party shall have so assumed the defense of the Third Indemnified Party against such claim following the delivery of such Claim Notice, the Indemnified Party may, but shall not be obligated to, undertake the defense of such claim on behalf of and for the account and risk of the Indemnifying Party, and if such Indemnified Party is entitled to indemnification under this Article IX, all reasonable legal and other expenses reasonably incurred by the Indemnified Party shall be borne by the Indemnifying Party. Any Indemnified Party shall have the right to employ one separate counsel (other than local counsel) in accordance with this Section 16.3 will any such action or claim and to participate in (but not control) the defense thereof either (I) at its own cost and expense or (II) at the Indemnifying Party’s cost and expense if (1) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party, (2) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable or (3) one or more defenses are available to the Indemnified Party that are not available to the Indemnifying Party (provided that, in the case of clauses (1), (2) or (3), the Indemnifying Party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnified Parties, other than local counsel, in any settlement action or other disposition claim or group of related actions or claims). No Indemnifying Party shall be liable to indemnify any Indemnified Party for any consent to an entry of any Damages by an Indemnified Party that is reached judgment or any compromise or settlement of any such action or claim effected without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). After any such claim has been filed or initiated, each party shall make available to the opportunity other parties and their attorneys and accountants all pertinent information under its control relating to assume such claim which is made available under the terms of a confidentiality agreement or similar protective measures, and the parties agree to render to each other such assistance as they may reasonably require of each other in order to facilitate the proper and adequate defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party such claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. iIn the event that any Claim for which a party (an "Indemnifying Party"), would be liable to the another party under this Article 17 (an "Indemnified Party") Each is asserted against or sought to be collected from an Indemnified Party by a third party, the Indemnified Party shall with reasonable promptness notify the other in Indemnifying Party of such Claim, but the event it becomes aware failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party of a claim for which indemnification may be sought pursuant to its obligations under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any 17, except to the extent the Indemnifying Party in respect demonstrates that the defense of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)claim or demand is materially prejudiced thereby. The Indemnifying Party and shall have 30 days from receipt of the above notice from the Indemnified Party shall promptly meet (the "Notice Period") to discuss how to respond to any claims that are notify the subject matter of such proceeding. At its option, Indemnified Party whether or not the Indemnifying Party may desires, at the Indemnifying Party's sole cost and expense, to defend the Indemnified Party against such Claim; provided, that the Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party and not prejudicial to the Indemnifying Party. If the Indemnifying Party elects to assume the defense of any Third such Claim, the Indemnified Party claim subject shall have the right to indemnification as provided for employ separate counsel at its own expense and to participate in this Section 16.3 by giving written the defense thereof. If the Indemnifying Party elects not to assume the defense of such Claim (or fails to give notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaintduring the Notice Period), if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated shall be entitled to make all reasonable efforts to obtain any assume the defense of such extension) after Claim with counsel of its own choice, at the expense of the Indemnifying Party’s receipt of an Indemnification . If the Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which is asserted against both the Indemnifying Party expressly agrees in writing that, as between and the Indemnified Party and based on the advice of counsel reasonably satisfactory to the Indemnifying Party it is determined that there is a conflict of interest which renders it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility responsible for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify paying separate counsel for the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writingshall not be responsible for paying for more than one separate firm of attorneys to represent all of the Indemnified Parties, or (b) regardless of the number of Indemnified Parties. If the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity elects to assume the defense of the Third Party claim in accordance with this Section 16.3. If such Claim,
(i) no compromise or settlement thereof may be effected by the Indemnifying Party chooses to defend or prosecute any Third Party claim, without the Indemnified Party will cooperate Party's written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to full by the Indemnifying Party to, and reasonable retention by (ii) the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all shall have no liability with respect to any compromise or settlement thereof effected without its reasonable out-of-pocket expenses incurred in connection with such cooperationwritten consent (which shall not be unreasonably withheld).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Indemnification Procedure. i(a) Each A Party shall notify the other in the event it becomes aware hereto or any of a claim for which its Affiliates seeking indemnification may be sought pursuant to this Article 16. In case any proceeding hereunder (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any claim or allegation by a Third Party (an “Indemnification Claim NoticeThird Party Claim”). The ) in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay to notify the Indemnifying Party and shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party shall promptly meet except to discuss how the extent that the Indemnifying Party demonstrates that its ability to respond defend or resolve such Third Party Claim is adversely affected thereby.
(b) Subject to any claims that are the subject matter provisions of such proceeding. At its optionsub-Clauses (d) and (e) below, the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice given to the Indemnified Party within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (30) days after receipt of the “Election Time Period”); with notice from the Indemnified Party being obligated of any Third Party Claim to make all reasonable efforts to obtain any assume the defense and handling of such extension) after Third Party Claim, at the Indemnifying Party’s receipt sole expense, in which case the provisions of an Indemnification Claim Noticesub-Clause (c) below shall govern.
(c) The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense and handling of such Third Party Claim, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees shall defend or handle the same in writing that, as between the Indemnifying Party and consultation with the Indemnified Party, and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)not, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, not agree to be unreasonably withheld a settlement of any Third Party Claim which could lead to liability or delayed.
iv) The Indemnifying Party that has assumed create any financial or other obligation on the defense part of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that for which the Indemnified Party is reached without the written consent of such Indemnifying Partynot entitled to indemnification hereunder. The Indemnified Party will not admit any liability shall cooperate with respect tothe Indemnifying Party and shall be entitled to participate in the defense and handling of such Third Party Claim with its own counsel and at its own expense. Notwithstanding the foregoing, or settle, compromise or discharge, in the event the Indemnifying Party fails to conduct the defense and handling of any Third Party claim without first offering Claim in good faith after having assumed such, then the provisions of sub-Clause (e) below shall govern.
(d) If the Indemnifying Party does not give written notice to the Indemnified Party, within thirty (30) days after receipt of the notice from the Indemnified Party of any Third Party Claim, of the Indemnifying Party’s election to assume the defense and handling of such Third Party Claim, the provisions of sub-Clause (e) below shall govern.
(e) The Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party the opportunity to assume in connection with conducting the defense and handling of such Third Party Claim and defend or handle such Third Party Claim in such manner as it may deem appropriate, provided, however, that the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Third Party claim in accordance with this Section 16.3Claim and shall not settle such Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnified Party defends or handles such Third Party Claim, the Indemnifying Party chooses to defend or prosecute any Third Party claim, shall cooperate with the Indemnified Party will cooperate and shall be entitled to participate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with handling of such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, Claim with its own counsel and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all at its reasonable out-of-pocket expenses incurred in connection with such cooperationown expense.
Appears in 1 contract
Sources: License Agreement (Nexmed Inc)
Indemnification Procedure. i13.4.1 Any party seeking indemnification, damages, or any other recovery whatsoever (the "Indemnified Party") Each from another party or parties (individually or collectively, the "Indemnifying Party") with respect to any claim, demand, action, proceeding or other matter pursuant to this Agreement or arising out of the transactions contemplated hereby (the "Claim") shall notify the Indemnifying party of the existence of the Claim, setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Party's right to indemnification (a "Notice of Claims"), which Notice of Claim shall contain the following information to the extent it is reasonably available to the Indemnified Party: (a) an estimate of the amount then reasonably ascertainable of the alleged loss, expense or liability against which the Indemnified Party is indemnified; (b) a description, in reasonable detail, of the circumstances giving rise to the alleged loss, expense, or liability; and (c) a statement identifying each party against whom a Claim is asserted. In no event shall such notice be valid or enforceable if sent after the Survival Period.
13.4.2 If any third party shall notify any Indemnified Party with respect to any matter which may give rise to a Claim for indemnification against the Indemnifying Party under this Agreement, then the Indemnified Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party thereof, which notice shall set forth the information required in Section 13.4.1 and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party be furnished within ** thirty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension30) days after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, 's receipt of notice from the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposethird party; provided, however, that such engagement will be at no delay on the part of the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by Party in notifying any Indemnifying Party shall relieve the Indemnifying Party in writing, from any liability or obligation hereunder unless (band then solely to the extent) the Indemnifying Party has failed thereby is materially prejudiced by such failure to give notice. However, in no event shall such notice be valid or enforceable if sent after the Survival Period. If the Indemnifying Party notifies the Indemnified Party within thirty (30) days that it will assume and actively further the defense thereof:
(1) the Indemnifying Party shall defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(2) the Indemnified Party may retain separate counsel at its sole cost and engage expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate counsel in accordance with this Section 16.3 to the extent the Indemnified Party concludes based upon advice of counsel that a conflict of interest exists between the Indemnified Party and Indemnifying Party that there may be one or more legal defenses available to the Indemnified Party which are not available to the Indemnifying Party, or available to the Indemnifying Party, but the assertion of which would be adverse to the interest of the Indemnified Party);
(in which case 3) the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the matter without the written consent of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, Party (not to be withheld unreasonably); and
(4) the Indemnifying Party will deem appropriate (provided, however that such terms shall not consent to the entry of any judgment or enter into any settlement which does not include a complete and unconditional release of provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto), and will transfer to without the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, Party (not to be unreasonably withheld or delayed.unreasonably);
iv) The 13.4.3 If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days that has assumed it will assume the defense of thereof, then the Third Indemnified Party claim in accordance with this Section 16.3 will not be liable for may defend against, or enter into any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settlethe matter in any manner it reasonably may deemed appropriate, compromise or dischargewithout prejudice to any of its rights hereunder;
13.4.4 The Indemnified Party shall be entitled to reimbursement for reasonable expenses, included in damages with respect to any Third Party claim Claim (including, without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimlimitation, the Indemnified Party will cooperate in the defense or prosecution thereof cost of defense, preparation and will furnish investigation relating to such records, information and testimony, provide Claim) as such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention expenses are incurred by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.Party;
Appears in 1 contract
Sources: Securities Purchase Agreement (Building Materials Holding Corp)
Indemnification Procedure. i(a) Each In order for an Indemnified Party shall notify the other to be entitled to any indemnification provided for under Section 9.6 or this Article 11 in the event it becomes aware respect of a claim made by any Person not a party to this Agreement against the Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the Indemnifying Party in writing of such Third Party Claim within fifteen (15) Business Days after receipt by such Indemnified Party of written notice of such Third Party Claim; provided, however, that failure to give such notification within the time period specified in this sentence shall not affect the indemnification provided hereunder except to the extent that the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party as promptly as practicable, and in any event within fifteen (15) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b) The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third Party Claim with counsel of its choice, subject to the limitations set forth below. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for which such consultation from time to time, and the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing at its expense. Notwithstanding the foregoing and without limitation of any right of an Indemnified Party to indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 1611, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet have the right to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may independently control and assume the defense of any Third Party claim subject Claim to indemnification as provided for in this Section 16.3 the extent involving a proceeding, action, investigation or Claim initiated by giving written notice to a Regulator or any other governmental authority; provided, that the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); shall consult with the Indemnified Indemnifying Party being obligated to make all reasonable efforts to obtain any such extension) after upon the Indemnifying Party’s receipt reasonable request for such consultation from time to time. The Indemnified Party shall not be required to share any information to the extent prohibited by applicable confidentiality restrictions as a part of such consultation.
(c) Without limitation to any right of an Indemnification Indemnified Party to recover for Claims pursuant to this Article 11 or Section 9.6 (including with respect to reasonable legal fees and expenses related to any Third Party Claim Noticedescribed in Section 11.7(b) pertaining to any Claim initiated by a governmental authority), solely if the Indemnified Party elects to assume or participate in any such defense and to employ separate counsel, the Indemnifying Party shall be responsible for claims, all reasonable costs and expenses actually incurred by the Indemnified Party in defending any such Third Party Claim (including reasonable legal fees of the Indemnified Party’s separate counsel) if: (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice both named parties to the Indemnifying Party within the Election Time Period. If proceedings and the Indemnified Party fails shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense actual or potential conflict of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify interests; or (ii) the Indemnified Party.
ii) Upon assuming Party assumes the defense of a Third Party claim in accordance with this Section 16.3, Claim after the Indemnifying Party shall be entitled has failed to appoint lead timely or diligently pursue a Third Party Claim it has assumed. Unless and any local counsel in until the Indemnifying Party assumes the defense of the Third Party claimClaim, the Indemnified Party may defend against the Third Party Claim in any manner it may reasonably deem appropriate. Should If the Indemnifying Party assume and continue assumes the defense of a Third Party claim, except as otherwise set forth in this Section 16.3Claim, the Indemnifying Party will shall not be liable to settle such Third Party Claim without the consent of the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis(which consent shall not be unreasonably withheld, defenseconditioned or delayed), countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, except that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or shall have the right to settle such Third Party Claim without the consent of the Indemnified Party if such settlement: (bx) does not involve any admission by the Indemnified Party of any violation of Applicable Law; (y) does not involve any relief against the Indemnified Party other than monetary damages for which the Indemnifying Party has failed agrees in writing to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case indemnify the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, limitations in its reasonable discretion, will deem appropriate this Article 11); and (provided, however that such terms shall include z) provides a complete and unconditional customary release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded Claim in form and substance reasonably satisfactory to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationParty.
Appears in 1 contract
Indemnification Procedure. i(a) Each Promptly after receipt by an Indemnified Party shall notify the other in the event it becomes aware of notice from a third party of a threatened or filed complaint or the threatened or actual commencement of any audit, investigation, action or proceeding (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party will provide written notification (which shall state in reasonable detail the nature and basis of such Third Party Claim, the basis of the claim for which indemnification may be sought pursuant with respect thereto and (to this Article 16. In case any proceeding the extent known or reasonably ascertainable) the amount of Losses related thereto) to Buyer or the Representative (including any governmental investigation) shall be instituted involving any on behalf of the Equityholders), whichever is the appropriate indemnifying Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party hereunder (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from liability under this Agreement with respect to such engagement will be at Third Party Claim except to the Indemnified Party’s own expense unless extent, and only to the extent that, such failure to notify the Indemnifying Party results in (ai) the engagement thereof has been specifically requested forfeiture by the Indemnifying Party in writing, or (b) of material rights and defenses otherwise available to the Indemnifying Party has failed with respect to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified such Third Party will control the defense), Claim or (cii) material prejudice to the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) with respect to such Third Party Claim. Subject to the Litigation Conditions being satisfiedconsent rights of any insurer or other limitations in the R&W Policy, the Indemnifying Party will have the sole right, upon written notice delivered to the Indemnified Party within twenty (20) days thereafter (or sooner if the nature of the Third Party Claim so requires), to assume the defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel; provided, however, notwithstanding anything to the contrary herein, the Representative will not have the right to defend a Third Party Claim if (x) a Buyer Indemnified Party or any insurer is required to assume the defense of such Third Party Claim pursuant to the R&W Insurance Policy, or (y) such Third Party Claim (A) includes a claim relating to (I) ownership of any Intellectual Property owned by or purported to be owned by the Company or any Subsidiary, or (II) that any Intellectual Property owned by, or exclusively licensed to, Buyer, the Company or any Subsidiary, infringes or violates, or constitutes or results from a misappropriation of, any such Intellectual Property, (B) involves potential criminal liability of Buyer, the Company or any Subsidiary, (C) includes a claim relating to Tax matters, or (D) seeks injunctive relief that would reasonably be expected to result in a material restriction on the continuing business interests of such Person against Buyer, the Company or any Subsidiary, in each of which cases, Buyer may elect to assume the defense of such Third Party Claim and be entitled to settle or compromise such Third Party Claim with the consent of the Representative (such consent not to be unreasonably withheld, delayed or conditioned) (with the reasonable expenses and any settled or compromise amounts constituting Buyer Losses hereunder) and the Representative will have the right to participate in the defense of such Third Party Claim at its sole cost and expense, but Buyer will control the investigation and defense thereof. If the Indemnifying Party declines, fails or is not permitted by the terms of this Agreement to assume the defense of such Third Party Claim within such twenty (20) day period, however, the Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Third Party Claim. In any Third Party Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, will have the right to participate in such matter and to retain its own counsel at such Party’s own expense; provided, however, if the Indemnifying Party agrees that such Third Party Claim is a matter with respect to which the Indemnified Party is entitled to receive payment from the Indemnifying Party for the Loss in question, the Indemnifying Party will pay the out of pocket expenses of such Indemnified Party’s counsel if the named parties to any such action (including any impleaded parties) include both such Indemnifying Party and the Indemnified Party and such Indemnified Party will have been advised by its counsel that there may be one or more legal defenses available to the Indemnified Party which are not available to such Indemnifying Party, or if available to such Indemnifying Party, the assertion of which would be adverse to or in conflict with the interests of the Indemnified Party. The Indemnifying Party or the Indemnified Party, as the case may be, will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.
(b) Neither Buyer, on the one hand, nor the Representative, on the other, may consent to the entry of any judgment, enter into settle or compromise any settlement claim or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains judgment with respect to which indemnification is being sought hereunder without the prior written consent of the other party (which will not be unreasonably withheld, conditioned or delayed); provided, however, the Indemnifying Party may enter into a judgment or settlement without the consent of the Indemnified Party if (i) such judgment or settlement provides solely for the payment of money and does not result in any financial or other obligation of the Indemnified Party, not (ii) Indemnifying Party makes such payment in full pursuant to be unreasonably withheld or delayedthe terms hereof and (iii) the applicable Indemnified Parties receive an unconditional full and final release related to such Third Party Claim.
iv(c) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by If an Indemnified Party that is reached without the written consent of claims a right to payment pursuant to this ARTICLE X not involving a Third Party Claim (a “Direct Claim”), such Indemnifying Party. The Indemnified Party will not admit any liability send written notice of such claim to the appropriate Indemnifying Party, and, if the Indemnified Party is a Buyer Indemnified Party, to the Escrow Agent. Such notice will specify in reasonable detail the nature and basis for such claim, the basis of the claim for indemnification with respect tothereto and (to the extent known or reasonably ascertainable) the amount of Losses related thereto (a “Claim Notice”). As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will work together in good faith to establish the merits and amount of such claim (by mutual agreement, arbitration, litigation or otherwise) and no later than 30 days after its receipt of a Claim Notice, the Indemnifying Party may (i) agree that the Indemnified Party is entitled to receive payment for all of the Losses at issue in the Claim Notice, or settle(ii) object to any Direct Claim set forth in such Claim Notice by delivering written notice to the Indemnified Party, compromise or dischargeand, any Third if the Indemnified Party claim without first offering is a Buyer Indemnified Party, copying the Escrow Agent, of the Indemnifying Party’s objection (an “Objection Notice”), which shall set forth in reasonable detail each disputed item and the basis for each such disputed item. If (i) a Claim Notice was delivered to the Indemnifying Party and, as applicable, the opportunity Escrow Agent, on or prior to assume the defense date that is twelve (12) months following the Closing Date (the “Claim Expiration Date”) and no Objection Notice was delivered to the Indemnified Party and, as applicable, the Escrow Agent, within 30 days after the receipt of the Third Claim Notice by the Indemnifying Party claim (or if such day is not a Business Day, then the next Business Day), or (ii) an Objection Notice was timely delivered to the Indemnified Party and, as applicable, the Escrow Agent, but such Objection Notice was only with respect to a portion of the Losses claimed in the Claim Notice, then (A) if the Indemnified Party is a Buyer Indemnified Party, each of Buyer and the Representative will execute and deliver to the Escrow Agent a joint written instruction signed by Buyer and the Representative instructing the Escrow Agent to release within five (5) Business Days after such time, such amount of the undisputed Buyer Losses specified in the Claim Notice to the Buyer (either on its own behalf or on behalf of a Buyer Indemnified Party) from the Indemnity Escrow Funds, or (B) if the Indemnified Party is an Equityholder Indemnified Party, Buyer will promptly pay all undisputed amounts due and owing to the Representative (on behalf of the Equityholders) by wire transfer of immediately available funds to an account or accounts designated by the Representative. Notwithstanding the foregoing, if the amount of the Buyer Losses set forth in the Claim Notice for which no timely objection is made (or portion thereof) is an estimate or the amount of Buyer Losses was not provided at the time that the Claim Notice was delivered, Buyer (on behalf of itself or any other Buyer Indemnified Party) will not be so entitled to receive, and the Escrow Agent will not deliver, funds in respect of Buyer Losses (or portions thereof) unless and until it receives joint written notice from Buyer and the Representative setting forth an agreement with respect to the amount of such Buyer Losses. The Escrow Agent will distribute cash from the Indemnity Escrow Funds in accordance with this Section 16.3. such instructions within five (5) Business Days after its receipt thereof.
(d) If an Objection Notice is timely received, then the Indemnifying Party chooses to defend or prosecute any Third Party claimamount disputed in such Objection Notice shall be treated as a disputed claim (a “Disputed Direct Claim”) and, if the Indemnified Party will cooperate is a Buyer Indemnified Party, the amount of such Disputed Direct Claim as set forth in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may Objection Notice shall be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention held by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on Escrow Agent as a mutually convenient basis to provide additional information and explanation reserved portion of the Indemnity Escrow Funds. The Escrow Agent will distribute cash from the Indemnity Escrow Funds in respect of any material provided hereundersuch Disputed Direct Claim in accordance with the Escrow Agreement. The Indemnifying Party For the avoidance of doubt, any resolution of a Disputed Direct Claim under this Section 10.03(d) adjudicated by litigation among the parties will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred be in connection accordance with such cooperationSections 11.16 and 11.17.
Appears in 1 contract
Sources: Merger Agreement (Trimble Inc.)
Indemnification Procedure. (a) The Party seeking indemnification under this Article XI (the “Indemnified Party”) agrees to give prompt written notice (the “Indemnification Notice”) to the Party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any Third Party Claim, [***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) Each Party shall notify not material and (ii) would be competitively harmful if publicly disclosed. or the other in the event it becomes aware commencement of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to under this Article 16, such XI; provided that the failure of an Indemnified Party to promptly notify the Indemnifying Party on a timely basis will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party unless and to the extent the Indemnifying Party demonstrates that it is materially prejudiced by the Indemnified Party’s failure to give timely notice.
(b) If the Indemnifying Party does not object to any claim or claims made in the Indemnification Notice in a written objection (the “Indemnified PartyIndemnification Objection”) shall promptly notify prior to the other Party expiration of twenty (20) Business Days from the “Indemnifying Party”) in writing (an “’s receipt of the Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume shall be deemed not to object to the defense of any Third information contained within the Indemnification Notice. If the Indemnifying Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to delivers an Indemnification Objection within such twenty (20) Business Day period, the Indemnifying Party and the Indemnified Party within ** shall attempt in good faith to resolve the dispute for twenty (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension20) Business Days after the Indemnifying Party’s receipt of an such Indemnification Claim NoticeObjection. If no resolution is reached, solely for claims, the dispute shall be resolved in accordance with the provisions of Section 12.4 and Section 12.5.
(ic) that solely seek monetary damages and (ii) as to which the The Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)if it so elects, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming control the defense of a Third Party claim in accordance Claim at the Indemnifying Party’s expense and shall consult with this Section 16.3the Indemnified Party with respect thereto, including the employment of counsel reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party shall not have the right to assume control of such defense if the claim that the Indemnifying Party seeks to assume control of (i) seeks material non-monetary relief, or (ii) involves criminal or quasi-criminal allegations; provided further that Alvogen shall be entitled to appoint lead assume and any local counsel in control (subject to Pfenex having the right to participate and comment) the defense of the Third Party claim. Should Claims relating to clause (f) of Section 11.2 and clause (f) of Section 11.1) as if it was the Indemnifying Party for such claim. If the Indemnifying Party is permitted to assume and continue control the defense of a Third Party claimClaim and elects to do so, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after shall have the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled right to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage employ counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested separate from counsel employed by the Indemnifying Party in writingany such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the expense of the Indemnified Party unless (A) the Indemnifying Party has specifically agreed in writing otherwise, or (bB) the Indemnifying Party has failed to assume and actively further the defense and engage employ counsel in accordance with this Section 16.3 (in which case the fees and expenses of the Indemnified Party will control the defense), or (c) Party’s counsel shall be paid by the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, if the Indemnifying Party will have the sole right otherwise has an obligation to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of indemnify the Indemnified Party from all liability with respect thereto), and will transfer to for the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with related Third Party claims, where Claim). If the Indemnifying Party has assumed the defense of the a Third Party claim Claim in accordance with this Section 16.3the terms hereof, the Indemnifying Party will have authority to may not enter into a settlement or consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains judgment without the prior written consent of the Indemnified Party unless (I) such settlement or judgment involves monetary damages only, all of which will be paid, without limitation, by the Indemnifying Party, not to be unreasonably withheld and no admission of fault or delayed.
ivculpability on behalf of any Indemnified Party, and (II) The Indemnifying Party that has assumed the defense a term of the Third settlement or judgment is that the Person or Persons asserting such claim unconditionally and irrevocably release all Indemnified Parties from all liability with respect to such claim; otherwise, the consent of the Indemnified Party claim shall be required in accordance with this Section 16.3 will not be liable for order to enter into any settlement of, or other disposition consent to the entry of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability a judgment with respect to, any claim (which consent shall not be unreasonably withhold, delayed or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3conditioned). If the Indemnifying Party chooses to defend does not assume or prosecute any is not controlling the defense of a Third Party claimClaim for any reason, then the Indemnified Party will cooperate may retain counsel of its own choosing, at the expense [***]Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. of the Indemnifying Party, and assume and control the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with of such Third Party claim. Such cooperation will include access during normal business hours afforded to Claim, and the Indemnifying Party to, and reasonable retention shall have the right to employ counsel separate from counsel employed by the Indemnified Party ofin any such action and to participate in the defense thereof, records but the fees and information that are reasonably relevant to expenses of such Third counsel employed by the Indemnifying Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation shall be at the expense of any material provided hereunderthe Indemnifying Party. The Indemnifying Party will reimburse shall have no obligations with respect to any Losses resulting from the Indemnified Party’s admission, settlement or other communication without the prior written consent of the Indemnifying Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation(which shall not be unreasonably withheld, delayed or conditioned).
Appears in 1 contract
Sources: Mena Development and License Agreement (Pfenex Inc.)
Indemnification Procedure. (a) Within a reasonable ------------------------- period of time after the incurrence of any Losses by any Person entitled to indemnification pursuant to Section 8.2 hereof (an "Indemnified Party"), ----------------- including, any claim by a third party described in Section 8.4, which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the party from which indemnification is sought (the "Indemnifying Party") a ------------------ certificate in the form of Exhibit K (the "Certificate"), which Certificate --------- ----------- shall:
(i) Each state that the Indemnified Party shall notify the other in the event has paid or properly accrued Losses or anticipates that it becomes aware of a claim will incur liability for Losses for which such Indemnified Party is entitled to indemnification may be sought pursuant to this Article 16. Agreement; and
(ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled hereunder.
(b) In case any proceeding (including any governmental investigation) the event that the Indemnifying Party shall be instituted involving any object to the indemnification of an Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) any claim or claims specified in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its optionCertificate, the Indemnifying Party may assume shall, within ten (10) days after receipt by the defense Indemnifying Party of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Certificate, deliver to the Indemnified Party within ** (or until a notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute to a court of competent jurisdiction. The party which receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable attorney and consultant's fees or expenses by the other party.
(c) Claims for Losses specified in any Certificate to which an Indemnifying Party shall not object in writing within ten (10) days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the nature described in Section 8.3(b), claims for Losses the validity and amount of which have been the subject of judicial determination as described in Section 8.3(b) and claims for Losses the validity and amount of which shall have been the subject of a final judicial determination, or shall have been settled with the consent of the Indemnifying Party, as described in Section 8.4, are hereinafter referred to, collectively, as "Agreed Claims". ------------- Within ten (10) days of the determination of the amount of any Agreed Claims, the Indemnifying Party shall be solely obligated pay to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if an amount equal to the Litigation Conditions are not satisfied, Agreed Claim by written wire transfer in immediately available funds to the bank account designated by the Indemnified Party in a notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
iinot less than two (2) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant Business Days prior to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedpayment.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i(a) Each Promptly following receipt by an Indemnified Party shall notify the other in the event it becomes aware of notice by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding third party (including any governmental Governmental Entity) of any complaint, dispute or claim or the commencement of any audit, investigation) shall be instituted involving any , action or proceeding with respect to which such Indemnified Party in respect of which indemnity may be sought entitled to indemnification pursuant to this Article 16hereto (“Third-Party Claim”), such Indemnified Party (shall provide written notice thereof to the “Indemnified Party”) shall promptly notify the other Party obligated to indemnify under this Agreement (the “Indemnifying Party”) in writing (an “Indemnification ), provided, however, that the failure or delay to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such Third-Party Claim Notice”)only if, and only to the extent that, such failure or delay materially prejudices the Indemnifying Party. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** thirty (or until such time provided in any applicable extension 30) days thereafter, to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claimThird-Party Claim, then including the Indemnifying Party shall be relieved employment of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable reasonably satisfactory to the Indemnified Party for and the payment of the fees and disbursements of such counsel. If the Indemnifying Party elects to undertake the defense of any legal expenses subsequently incurred by such Third-Party Claim hereunder, the Indemnified Party after the date of assumption of defense in connection shall cooperate with the analysis, defense, countersuit Indemnifying Party in the defense or settlement of the Third Third-Party claimClaim, including providing access to information, making documents available for inspection and copying, and making employees available for interviews, depositions and trial. Without limiting this Section 16.3, any Indemnified The Indemnifying Party will shall not be entitled to participate in, but not control, the defense of a Third settle any Third-Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claim without the prior written consent of the Indemnified Party, which consent shall not to be unreasonably withheld or delayed.
iv) The ; provided, however, that the Indemnifying Party that has assumed the defense of the Third shall be permitted to settle any Third-Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached Claim without the prior written consent of such Indemnifying Party. The the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third if such Third-Party claim without first offering to Claim seeks recovery of monetary damages only for which the Indemnifying Party has acknowledged its liability in writing and which are paid in full by the opportunity Indemnifying Party and such settlement includes the unconditional release of the Indemnified Party and its officers, directors, employees, and Affiliates from all liability in respect to such Third-Party Claim from each claimant and from the Indemnifying Party.
(b) In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third-Party Claim on the Third Party claim terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimeither case within such thirty (30)-day period, the Indemnified Party will cooperate in may, at the defense or prosecution thereof and will furnish Indemnifying Party’s expense, defend against such recordsThird-Party Claim, information and testimony, provide such witnesses including to after giving notice of the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded same to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate, and the Indemnifying Party shall be entitled to participate in (but not control) the defense of such action, with its counsel and at its own expense. The Indemnified Party shall not settle or compromise any Third-Party Claim for which it is entitled to indemnification hereunder, without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) unless such settlement, compromise or consent includes an unconditional release of the Indemnifying Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, and reasonable retention such Third-Party Claim.
(c) In the event an Indemnified Party claims a right to payment pursuant hereto with respect to any matter not involving a third party complaint, dispute or claim (“Direct Claim”), such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party (a “Notice of Claim”). Such Notice of Claim shall specify the basis for such Direct Claim. The failure by any Indemnified Party to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that it may have to such Indemnified Party with respect to any Direct Claim made pursuant to this Section 10.3(c), it being understood that Notices of Claim in respect of a breach of a representation or warranty must first be delivered prior to the expiration of the survival period for such representation or warranty under Section 10.4. In the event the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following its receipt of such Notice of Claim that the Indemnifying Party disputes its liability to the Indemnified Party under this Article X or the amount thereof, the Direct Claim specified by the Indemnified Party of, records and information that are reasonably relevant to in such Third Notice of Claim shall be conclusively deemed a liability of the Indemnifying Party claimunder this Article X, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse shall pay the amount of such liability to the Indemnified Party for all on demand or, in the case of any notice in which the amount of the Direct Claim (or any portion of the Direct Claim) is estimated, on such later date when the amount of such Direct Claim (or such portion of such Direct Claim) becomes finally determined. In the event the Indemnifying Party has timely disputed its reasonable out-of-pocket expenses incurred liability with respect to such Direct Claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such Direct Claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days following the final determination of the merits and amount of such Direct Claim, the Indemnifying Party shall pay to the Indemnified Party immediately available funds in connection with an amount equal to such cooperationDirect Claim as determined hereunder.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which that any Person entitled to indemnification may be sought pursuant to under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify receives notice of the other assertion of any claim or of the commencement of any Proceeding by any Person who is not a Party or an Affiliate of a Party (the a “Third Party Claim”) against such Indemnified Party, with respect to which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party shall give written notice regarding such Third Party Claim to the Indemnifying Party within thirty (30) days after receiving written notice of such Third Party Claim; provided, however, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent (and only to the extent) that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in writing reasonable detail and include reasonable supporting documentation related thereto (an “Indemnification Claim Notice”)as applicable) and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall be entitled, by giving notice to the Indemnified Party not later than thirty (30) days after receipt of such notice of such Third Party Claim, to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and/or to assume the defense thereof (subject to the limitations set forth below) at such Indemnifying Party’s expense by appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense.
(b) The Indemnifying Party and the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume cooperate with each other in all reasonable respects in connection with the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaintClaim, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals appeals, as may be reasonably requested in connection with therewith. The Party controlling such Third Party Claim shall keep the non-controlling Party reasonably advised of the status of such Third Party Claim and shall consider in good faith recommendations made by the non-controlling Party with respect thereto.
(c) If the Indemnifying Party has assumed the defense of a Third Party Claim in accordance with the terms hereof, the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, and the fees and expenses of such separate counsel shall be borne by the Indemnified Party other than (i) any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party assumes control of such defense and (ii) any fees and expenses of such separate counsel if the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party that are not available to the Indemnifying Party or that the Indemnified Party and the Indemnifying Party may have conflicting, or adverse legal positions or interests with respect to such Third Party Claim.
(d) If the Indemnifying Party shall control the defense of any Third Party Claim, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of, consenting to the entry of any judgment with respect to or ceasing to defend such Third Party Claim, unless the Indemnified Party and its Affiliates are given an express and unconditional full release of any and all Liability by all relevant parties to the claim, no injunctive, extraordinary, equitable or other relief of any kind is imposed on the Indemnified Party or any of its Affiliates, and all monetary Losses payable under the settlement or consent are being paid by the Indemnifying Party.
(e) Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to control the defense of a Third Party Claim (and the Indemnified Party shall be entitled to maintain or assume control of the defense of such Third Party Claim) if (i) the Third Party Claim relates to or involves any criminal or quasi criminal Proceeding, (ii) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (iii) the Indemnified Party reasonably believes that the Losses relating to the claim are reasonably likely to exceed the maximum amount that such Indemnified Party would then be entitled to recover under this Article 9, (iv) there exists, or would reasonably be expected to, exist a conflict of interest that would make it inappropriate for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (v) the Third Party Claim involves a material customer or material supplier of the Indemnified Party with whom the Indemnified Party has a continuing business relationship, (vi) the Third Party Claim primarily involves Taxes (which shall be governed exclusively by Section 6.1(f)), or (vii) the R&W Insurer has exercised a right to defend the Third Party Claim under the R&W Policy.
(f) Any claims by an Indemnified Party on account of a Loss that is entitled to indemnification under this Agreement which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof (a “Direct Claim Notice”), but in any event not later than thirty (30) calendar days after the Indemnified Party becomes aware of such Direct Claim; provided, however, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent (and only to the extent) that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such cooperation will Direct Claim Notice shall describe the Direct Claim in reasonable detail, shall include copies of all written documents relating thereto and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) calendar days after its receipt of such Direct Claim Notice to respond in writing to such Direct Claim. The Indemnified Party shall provide reasonable access during normal business hours afforded to the Indemnifying Party toand its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and reasonable retention by the Indemnified Party of, records and information that are shall reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The cooperate with the Indemnifying Party’s investigation as the Indemnifying Party will reimburse or any of its professional advisors may reasonably request. If the Indemnifying Party does not provide written notice to the Indemnified Party for all that it disputes such Direct Claim within thirty (30) calendar days after its reasonable out-of-pocket expenses incurred receipt of such Direct Claim Notice, such Direct Claim will be conclusively deemed a Loss subject to indemnification hereunder.
(g) Notwithstanding anything to the contrary contained herein, to the extent the procedures in connection this Section 9.4 are in conflict with the procedures in the R&W Policy with regard to matters such cooperationas notice, control, settlement or defense of claims, the procedures in the R&W Policy shall control, but this Section 9.4 shall not relieve the Indemnified Party from its obligations hereunder to give notice to the Indemnifying Party.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify Any Person seeking indemnification (the "Indemnified Party") from any other in Person (the event it becomes aware of a claim for which indemnification may be sought "Indemnifying Party") with respect to any claim, demand, action, proceeding or other matter pursuant to this Article 16. In case any proceeding Section 11.2 (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”a "Claim") shall promptly notify the other Indemnifying Party (the “Indemnifying Party”) in writing of the existence of the Claim, setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Party's right to indemnification.
(an “Indemnification b) If any third party shall notify any Indemnified Party with respect to any matter which may give rise to a Claim Notice”). The for indemnification against the Indemnifying Party and under this Agreement, then the Indemnified Party shall promptly meet to discuss how to respond to notify each Indemnifying Party thereof; provided, however, that no delay on the part of the Indemnified Party in notifying any claims that are the subject matter of such proceeding. At its option, Indemnifying Party shall relieve the Indemnifying Party may assume from any liability or obligation hereunder unless (and then solely to the defense of any Third extent) the Indemnifying Party claim subject thereby is materially prejudiced by such failure to indemnification as provided for in this Section 16.3 by giving written notice to give notice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within ** five days after the Indemnified Party's receipt thereof, copies of all notices and documents (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with including court papers) received by the Indemnified Party being obligated relating to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s Claim. Upon receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Partynotice of a Claim, the Indemnifying Party shall be solely obligated entitled, at its option and at its cost and expense, to satisfy and discharge assume the claim in full (defense of such Claim by notifying the matters described in Indemnified Party thereof within 30 days of receiving such notice. In addition:
(i) and the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(ii), ) the “Litigation Conditions”). The Indemnified Party may assume responsibility retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel (A) to the extent the Indemnified Party concludes reasonably based upon written advice of counsel that a material conflict of interest exists between the Indemnified Party and Indemnifying Party or (B) the named parties to any such defense if action (including any impleaded parties) include both such Indemnified Party and the Litigation Conditions Indemnifying Party and such Indemnified Party shall have been advised in writing by counsel that there may be one or more legal defenses available to the Indemnified Party which (1) are not satisfied, by written notice available to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails or (2) available to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall but the assertion of which would be relieved adverse to the interest of its responsibility to indemnify the Indemnified Party.);
ii(iii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to not consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose with respect to the matter without the prior written consent of such Damages, on such terms as the Indemnifying Party (such consent not to be unreasonably delayed or withheld); and
(iv) the Indemnifying Party will not consent (without the consent of the Indemnified Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall consent not to be unreasonably delayed or withheld) to the entry of any judgment or enter into any settlement which does not include a complete and unconditional release of provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto), and will transfer to .
(c) If no Indemnifying Party notifies the Indemnified Party all amounts which said within 30 days after the Indemnified Party will be liable to pay pursuant to such settlement or disposal has given notice of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where matter that the Indemnifying Party has assumed is assuming the defense of thereof, then the Third Indemnified Party claim in accordance with this Section 16.3may defend against, the Indemnifying Party will have authority to consent to the entry of any judgment, or enter into any settlement with respect to, the matter in any manner it reasonably may deem appropriate, without prejudice to any of its rights hereunder, subject, however, to the provisions of Section 11.3(b)(iii), and provided that giving or otherwise dispose of such Damages, provided it obtains the prior written consent of failure to give notice by the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the with respect to defense of the Third Party claim in accordance with this Section 16.3 will a Claim shall not be liable for any settlement or other disposition an acknowledgment by the Indemnifying party of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationClaim.
Appears in 1 contract
Sources: Merger Agreement (Uproar Inc)
Indemnification Procedure. i) Each Party shall notify the other The indemnifications contained in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) Agreement shall be instituted involving implemented as follows:
A. If any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party Buyer Indemnitee or Seller Indemnitee (the an “Indemnified Party”) believes that it has suffered or incurred, or will suffer or incur, any Losses with respect to any matter (an “Indemnification Claim”) which may give rise to a claim for indemnification under Section 14.5, the Indemnified Party shall promptly notify the other Party or Parties from whom indemnification is being claimed (the “Indemnifying Party”) in writing writing; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (an “and then solely to the extent) the Indemnifying Party thereby is prejudiced.
B. Any Indemnifying Party will have the right to assume the defense of the Indemnification Claim Notice”). The with counsel of his, her or its choice reasonably satisfactory to the Indemnified Party at any time within 30 days after the Indemnified Party has given written notice to the Indemnifying Party and of the Indemnification Claim; provided, however, that the Indemnified Party shall promptly meet to discuss how to respond to any claims that are may retain separate co-counsel at its sole cost and expense and participate in the subject matter defense of such proceedingthe Indemnification Claim. At its optionNotwithstanding the foregoing, the Indemnifying Party may assume shall not be entitled, except with the defense consent of the Indemnified Party, to take any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice of the actions referred to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, previous sentence unless: (i) that solely seek the principal relief sought under the Indemnification Claim shall be monetary damages and in nature; (ii) as to which the Indemnifying Party shall have expressly agrees agreed in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) such Indemnification Claim; and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense iii) if the Litigation Conditions are not satisfied, reasonably requested to do so by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall have made reasonably adequate provision to ensure the Indemnified Party of the financial ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that may reasonably be entitled expected to appoint lead result from such Indemnification Claim.
C. So long as the Indemnifying Party has assumed and any local counsel in is conducting the defense of the Third Party claim. Should Indemnification Claim in good faith and in accordance with the Indemnifying Party assume and continue the defense terms of a Third Party claim, except as otherwise set forth in this Section 16.3, 14.6 B (i) the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, judgment or enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Indemnification Claim without the prior written consent of the Indemnified Party, Party (not to be unreasonably withheld or delayed), unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party (in which case the consent of the Indemnified Party shall not be required), and (ii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Indemnification Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld or delayed).
iv) The D. In the event none of the Indemnifying Party that has assumed Parties assumes and conducts the defense of the Third Party claim Indemnification Claim in accordance with this Section 16.3 will not be liable for 14.6 C, however, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, the Indemnification Claim in any manner he, she or settleit reasonably may deem appropriate (but the Indemnified Party still shall obtain any consent from any Indemnifying Party in connection therewith) and (ii) the Indemnifying Parties will remain responsible for any Losses the Indemnified Party may suffer (including reasonable attorneys fees and expenses) resulting from, compromise arising out of, relating to, in the nature of, or discharge, any Third Party claim without first offering caused by the Indemnification Claim to the Indemnifying Party the opportunity to assume extent provided in Section 14.5.
E. Regardless of which party assumes the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimIndemnification Claim, the Indemnified Party will Parties shall reasonably cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested with one another in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationtherewith.
Appears in 1 contract
Indemnification Procedure. i) Each Party shall notify Upon the other in the event it becomes aware occurrence of a any claim for which indemnification may is believed to be sought pursuant to due under this Article 16. In case any proceeding Agreement, the party seeking indemnification (including any governmental investigationthe "Indemnified Party") shall be instituted involving any Party in respect provide notice of which indemnity may be such claim (a "Claim Notice") to the party from whom indemnification is sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “"Indemnifying Party”) in writing (an “Indemnification Claim Notice”"). The Claim Notice shall state in general terms the circumstances giving rise to the claim, specify the amount of the claim (or an estimate thereof), and make a request for any payment then believed due. A Claim Notice shall be conclusive against the Indemnifying Party and Indemnified in all respects 20 days after receipt by the Indemnifying Party shall promptly meet to discuss how to respond to any claims that are the subject matter of unless, within such proceeding. At its optionperiod, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to sends the Indemnified Party within ** a notice disputing the propriety or amount of the claim (or until a "Dispute Notice"). Any Dispute Notice shall describe the basis for such time provided in objection and the amount of the claim that the Indemnifying Party does not believe should be subject to indemnification. Upon receipt of any applicable extension to appropriately answer any complaintDispute Notice, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all and the Indemnifying Party shall use reasonable efforts to obtain any such extension) after cooperate and arrive at a mutually acceptable resolution of the Indemnifying Party’s receipt dispute within the next 30 days. If a resolution is not reached within the 30-day period, either party may submit the dispute for resolution by a panel of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which three arbitrators selected from the Indemnifying Party expressly agrees panels of arbitrators of the American Arbitration Association in writing that, as between a city mutually selected by the Indemnifying Party and the Indemnified Party (or, if no city can be mutually agreed upon within 15 days, then in Dallas, Texas). The Indemnified Party shall select one arbitrator, the Indemnifying Party shall select the second arbitrator, and the two previously selected arbitrators shall select the third arbitrator. In all respects, the American Arbitration Association's then existing Commercial Arbitration Rules shall govern such panel. The arbitrators' decision shall be binding and conclusive on the parties. If it is finally determined (through either agreement of the parties, arbitration or a Claim Notice becoming conclusive) that all or a portion of the claim amount is owed to the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge shall, within 10 days of such determination, pay the claim in full Indemnified Party such amount owed, together with interest from the date of the Claim Notice until the date of actual payment at the rate earned on the Escrow Funds (the matters described in (i) and (ii), the “Litigation Conditions”"Applicable Rate"). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party non-prevailing party in any arbitration shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense pay all costs of the Third Party claim. Should the Indemnifying Party assume arbitration and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement all of the Third Party claimprevailing party's reasonable attorneys' fees and expenses of investigation. Without limiting this Section 16.3The arbitrators shall specify in their decision which party (i.e., any Indemnified Party will Parent or the shareholders of the Company as a group) is the prevailing party and the amount of the costs, fees and expenses to be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested paid by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsnon-prevailing party.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. iWith respect to Third-Party claims, all claims for indemnification by any ▇▇▇▇▇▇▇▇ Indemnitee or MTI Indemnitee (each, as the case may be, an "Indemnified Party") Each Party hereunder shall notify the other be asserted and resolved as set forth in this Section 10.3. In the event it becomes aware of a that any written claim or demand for which indemnification MTI or ▇▇▇▇▇▇▇▇ (each, as the case may be, an "Indemnifying Party") would be liable to any Indemnified Party hereunder is asserted against or sought pursuant to this Article 16. In case be collected from any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16by a Third Party, such Indemnified Party (the “Indemnified Party”) shall promptly notify the other Indemnifying Party of such claim or demand and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand) (the “Indemnifying Party”) in writing (an “Indemnification "Claim Notice”"); provided, however, that the failure to provide prompt notice as provided herein shall relieve the Indemnifying Party of its obligations hereunder only to the extent such failure prejudices the Indemnifying Party hereunder. The Indemnifying Party and shall have thirty (30) days from the date of receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, whether or not the Indemnifying Party may assume disputes the defense liability of any Third the Indemnifying Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (hereunder with respect to such claim or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which demand. If the Indemnifying Party expressly agrees in writing that, as between fails to respond to the Indemnifying Party and Claim Notice within the Indemnified PartyNotice Period or otherwise fails to dispute such liability, the Indemnifying Party shall be solely obligated to satisfy and discharge defend the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for against such defense if claim or demand at the Litigation Conditions are not satisfiedIndemnifying Party's sole cost and expense. Except as hereinafter provided, by written notice to in the event that the Indemnifying Party within the Election Time Period. If agrees, or is otherwise obligated, to defend the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and against such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3or demand, the Indemnifying Party shall be entitled have the right to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to defend the Indemnified Party for any legal expenses subsequently incurred by appropriate proceedings and shall have the sole power to direct and control such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, If any Indemnified Party will be entitled desires to participate inin any such defense, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder may do so at its sole cost and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the expense. The Indemnified Party will control shall not settle a claim or demand without the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretionwhich consent shall not be unreasonably withheld, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement delayed or disposal of such claim prior to the time such payments become due by the Indemnified Partyconditioned. With respect to all other Damages in connection with Third Party claims, where the The Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3shall not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, which consent shall not to be unreasonably withheld withheld, delayed or delayed.
ivconditioned, settle, compromise or offer to settle or compromise any such claim or demand (a) The on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (b) if such settlement or compromise would result in the finding or admission of any violation of applicable law, or (c) if such settlement or compromise does not include an unconditional release of the Indemnified Party for any liability arising out of such claim or demand. If the Indemnifying Party does not defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, and the Indemnifying Party is determined by a court of competent jurisdiction to have had an obligation to indemnify the Indemnified Party pursuant to this Agreement, then the amount of any such claim or demand or, if the same be contested by the Indemnified Party, that has assumed portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses pertaining to such defense and to establishing the Indemnifying Party's indemnification obligations hereunder) shall be the liability and responsibility of the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party claim (and shall be liable for the costs and expenses of counsel employed by the Indemnified Party in defending such third party claim) if the Third Party claim seeks an order, injunction or other equitable relief or relief for other than money Damages against the Indemnified Party that the Indemnified Party reasonably Strategic Alliance Agreement - Execution Version -30- determines, after conferring with its counsel, cannot be separated from any related claim for money Damages. If such equitable or other relief pertaining to the non-monetary portion of the Third Party claim in accordance with this Section 16.3 will not can be liable so separated from that for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect tomoney Damages, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity shall be entitled to assume the defense of the Third portion relating to money Damages. MTI and ▇▇▇▇▇▇▇▇ shall each render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any Third-Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationproceeding.
Appears in 1 contract
Sources: Strategic Alliance Agreement (Mechanical Technology Inc)
Indemnification Procedure. (i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 1618. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 1618, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 18.3 by giving written notice to the Indemnified Party within [** **] (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than [** **] (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages [***] and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii)[***], the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
(ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.318.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.318.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.318.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 18.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
(iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto)[***], and will transfer to the Indemnified Party all amounts which said such Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.318.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld withheld, delayed or delayedconditioned.
(iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 18.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.318.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals [***] as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. [***] The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
(v) In the event Edison seeks indemnification from the counterparty to an Upstream Agreement for a matter for which Apollomics would be entitled to indemnification pursuant to Section 18.1, E▇▇▇▇▇ shall include Apollomics as an indemnitee to the extent Apollomics has suffered damages by relevant claim under the Upstream Agreement.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which indemnification may be sought pursuant that subsequent to this Article 16. In case the Closing any proceeding Seller Indemnified Person or Buyer Indemnified Person (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify receives notice of the other assertion of any claim or of the commencement of any action or proceeding by any person or entity who is not a party to this Agreement (including any Governmental Entity) (a “Third Party Claim”) against such Indemnified Party, with respect to which a Party to this Agreement is or may be required to provide indemnification under this Agreement (the an “Indemnifying Party”), the Indemnified Party shall give written notice specifying the nature of such claim in reasonable detail and the amount or estimated amount thereof if known (which amount or estimated amount shall not be conclusive of the final amount, if any, of such claim) in writing (an a “Indemnification Claim Notice”). The ) to the Indemnifying Party and Indemnified Party shall as promptly meet to discuss how to respond to any claims that are the subject matter as practicable, after learning of such proceedingClaim; provided, however, the failure of a Party to provide timely notice hereunder shall not preclude its claim for indemnification under this Agreement except to the extent the Indemnifying Party is prejudiced by such failure to provide timely notice. At its optionSubject to Section 9.4(e), the Indemnifying Party may assume shall have the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving right, upon written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time PeriodDefense Notice”); with ) within ten (10) days after receipt from the Indemnified Party being obligated to make all reasonable efforts to obtain any of notice of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticeclaim, solely for claims, (i) that solely seek monetary damages and (ii) as to which notice by the Indemnifying Party expressly agrees shall specify the counsel it will appoint to defend such claim (“Defense Counsel”), to conduct at its expense the defense against such claim in writing thatits own name, as between or if necessary, in the name of the Indemnified Party; provided that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld, conditioned or delayed, and in the event the Indemnifying Party and the Indemnified Party, Party cannot agree upon such counsel within five (5) Business Days after the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claimDefense Notice is provided, then the Indemnifying Party shall propose an alternate Defense Counsel, which shall be relieved of its responsibility subject again to indemnify the Indemnified Party’s approval as provided in this Section 9.4(a).
ii(b) Upon assuming In the event that the Indemnifying Party shall fail to assume the defense pursuant to Section 9.4(a), the Indemnified Party shall have the right to conduct such defense and the Indemnifying Party shall have the right, at its expense, to participate in the defense assisted by counsel of a Third its own choosing; provided that the Indemnified Party shall not have the right to compromise and settle the claim without prior consent of the Indemnifying Party (which shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party will be liable for all costs, expenses, settlement amounts or other Damages paid or incurred in accordance with connection therewith to the extent the Indemnifying Party is required to provide indemnification under this Agreement subject to the limitations contained in this ARTICLE IX.
(c) In the event that the Indemnifying Party does assume the defense pursuant to Section 16.39.4(a), the Indemnifying Party shall be entitled have the right to appoint lead conduct such defense and, except as provided in Section 9.4(d), to settle the claim without the prior consent of the Indemnified Party, and any local counsel in the defense of the Third Party claim. Should Damages with respect to such claim shall be paid directly by the Indemnifying Party assume and continue subject to the defense of a Third Party claim, except as otherwise set forth limitations contained in this Section 16.3, ARTICLE IX. The Indemnified Party shall cooperate with and make available to the Indemnifying Party will not be liable to such assistance and materials as the Indemnifying Party may reasonably request, all at the expense of the Indemnifying Party, and the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after shall have the date of assumption of defense in connection with the analysisright, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s expense, to participate in the defense assisted by counsel of its own expense unless (a) the engagement thereof has been specifically requested by choosing. The Indemnified Party may not compromise or settle any claim for which the Indemnifying Party has assumed the defense.
(d) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement related to an Indemnified Party without the prior written consent of such Indemnified Party (i) if such judgment or settlement does not include as an unconditional term thereof the giving of a release of such Indemnified Party from all liability in writing, respect to such claim; (ii) if such judgment or settlement would result in the finding or admission of any violation of applicable laws against such Indemnified Party; or (biii) if as a result of such judgment or settlement, injunctive or other equitable relief would be imposed against such Indemnified Party or such judgment or settlement would materially interfere with or adversely affect the business, operations or assets of such Indemnified Party.
(e) Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to control the defense or settlement of any claim (and the cost of such defense and any Damages with respect to such claim shall constitute an amount for which the Indemnified Party may be entitled to indemnification hereunder) if (i) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation; or (ii) the Indemnifying Party has failed or is failing to assume and actively further vigorously prosecute or defend such claim.
(f) In the defense and engage counsel in accordance with this Section 16.3 event any Indemnified Party shall have a claim for indemnification against any Indemnifying Party that does not involve a Third Party Claim (in which case a “Direct Claim”), the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject shall deliver a Claim Notice with reasonable promptness to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The failure by any Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering so to notify the Indemnifying Party shall not relieve the opportunity Indemnifying Party from any liability that it may have to assume the defense of the Third such Indemnified Party with respect to any claim in accordance with made pursuant to this Section 16.39.4(f) except to the extent the Indemnifying Party is prejudiced by such failure to provide timely notice. If the Indemnifying Party chooses fails to defend accept the Direct Claim in writing within thirty (30) days after the date of the Claim Notice or prosecute any Third if the Indemnifying Party claimrejects the Direct Claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to commence an Action against the Indemnifying Party toin respect of such Direct Claim.
(g) The provisions of Sections 9.4(a), 9.4(b), 9.4(c), 9.4(d), and reasonable retention 9.4(e) shall not apply to Tax Contests, which shall be governed by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation provisions of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationSection 7.5.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mattress Firm Holding Corp.)
Indemnification Procedure. i(a) Each Party shall notify Any Person seeking indemnification (the "Indemnified Party") from any other in Person (the event it becomes aware of a claim for which indemnification may be sought "Indemnifying Party") with respect to any claim, demand, action, proceeding or other matter pursuant to this Article 16. In case any proceeding Section 11.2 (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”a "Claim") shall promptly notify the other Indemnifying Party (the “Indemnifying Party”) in writing of the existence of the Claim, setting forth in reasonable detail the facts and circumstances pertaining thereto and the basis for the Indemnified Party's right to indemnification.
(an “Indemnification b) If any third party shall notify any Indemnified Party with respect to any matter which may give rise to a Claim Notice”). The for indemnification against the Indemnifying Party and under this Agreement, then the Indemnified Party shall promptly meet to discuss how to respond to notify each Indemnifying Party thereof; provided, however, that no delay on the part of the Indemnified Party in notifying any claims that are the subject matter of such proceeding. At its option, Indemnifying Party shall relieve the Indemnifying Party may assume from any liability or obligation hereunder unless (and then solely to the defense of any Third extent) the Indemnifying Party claim subject thereby is materially prejudiced by such failure to indemnification as provided for in this Section 16.3 by giving written notice to give notice. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, within ** five days after the Indemnified Party's receipt thereof, copies of all notices and documents (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with including court papers) received by the Indemnified Party being obligated relating to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s Claim. Upon receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Partynotice of a Claim, the Indemnifying Party shall be solely obligated to satisfy entitled, at its option and discharge the claim in full (the matters described in (i) at its cost and (ii)expense, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of such Claim by notifying the Third Indemnified Party claim in accordance with this Section 16.3thereof within 30 days of receiving such notice. If In addition:
(i) the Indemnifying Party chooses to will defend or prosecute any Third Party claim, the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party;
(ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will cooperate in be responsible for the defense or prosecution thereof fees and will furnish such records, information and testimony, provide such witnesses including expenses of the separate co-counsel (A) to the extent possible, former employees the Indemnified Party concludes reasonably based upon written advice of counsel that a material conflict of interest exists between the Indemnified Party and attend Indemnifying Party or (B) the named parties to any such conferences, discovery proceedings, hearings, trials action (including any impleaded parties) include both such Indemnified Party and appeals as the Indemnifying Party and such Indemnified Party shall have been advised in writing by counsel that there may be reasonably requested in connection with such Third one or more legal defenses available to the Indemnified Party claim. Such cooperation will include access during normal business hours afforded which (1) are not available to the Indemnifying Party to, and reasonable retention by or (2) available to the Indemnifying Party but the assertion of which would be adverse to the interest of the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.Party);
Appears in 1 contract
Sources: Merger Agreement (Uproar Inc)
Indemnification Procedure. i(a) Each Party shall notify the other in In the event it becomes aware of a claim for which that any Person entitled to indemnification may be sought pursuant to under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly notify receives notice of the other assertion of any claim or of the commencement of any Proceeding by any Person who is not a Party or an Affiliate of a Party (the a “Third Party Claim”) against such Indemnified Party, with respect to which a Party is or may be required to provide indemnification under this Agreement (an “Indemnifying Party”), the Indemnified Party will give written notice regarding such Third Party Claim to the Indemnifying Party within 30 days after learning of such Third Party Claim, provided that the failure to so notify an Indemnifying Party will not relieve the Indemnifying Party of its obligations under this ARTICLE 10, except to the extent (and only to the extent) that the Indemnifying is materially prejudiced by reason of such failure, and will not relieve such Indemnifying Party from any other obligation that it may have to an Indemnified Party other than under this ARTICLE 10.
(b) The Indemnifying Party will be entitled to participate in writing the defense of such Third Party Claim at such Indemnifying Party’s expense (an “Indemnification Claim Notice”which expenses will not be applied against any indemnity limitation herein). The Indemnifying Party and Indemnified Party shall promptly meet at its option will be entitled to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim thereof (subject to indemnification as provided for in this Section 16.3 the limitations set forth below) by giving (i) delivering written notice to the Indemnified Party of its election to assume the defense of such Third Party Claim within ** 15 days of receipt of notice from the Indemnified Party, (or until ii) appointing a nationally recognized and reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** defense and (the “Election Time Period”); iii) entering into a written agreement with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees is unconditionally obligated to pay and satisfy any Losses which may arise with respect to such Third Party Claim and provides evidence of its ability to satisfy such obligation, in writing thateach case, as between in form and substance reasonably satisfactory to the Indemnified Party. If the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated does not expressly elect to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim Claim within the time period and otherwise in accordance with this Section 16.3the preceding sentence, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent assume the defense of and to the entry of any judgment, enter into any settlement or otherwise dispose of settle such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where Claim.
(c) If the Indemnifying Party has assumed the defense of the a Third Party claim Claim in accordance with this Section 16.3the terms hereof, the Indemnified Party will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, and the fees and expenses of such separate counsel will be borne by the Indemnified Party other than any fees and expenses of such separate counsel (i) that are incurred prior to the date the Indemnifying Party assumes control of such defense, (ii) if the Indemnified Party reasonably will have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party that are not available to the Indemnifying Party, or (iii) if the Indemnifying Party may have different, conflicting, or adverse legal positions or interests from the Indemnified Party with respect to such Third Party Claim.
(d) Notwithstanding anything to the contrary contained herein, the Indemnifying Party will have authority not be entitled to consent assume the defense of a Third Party Claim (and the Indemnified Party will be entitled to maintain or assume control of the defense of such Third Party Claim) if (i) the Third Party Claim relates to or involves any criminal or quasi criminal Proceeding, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the entry Third Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects, (iii) the Third Party Claim seeks an injunction or other equitable relief against the Indemnified Party, (iv) the Indemnified Party reasonably believes that the Losses relating to the claim could exceed the maximum amount that such Indemnified Party would then be entitled to recover under this ARTICLE 10, (v) the Third Party Claim invokes Taxes, (vi) there exists or would, or could reasonably be expected to, exist a conflict of interest that would make it inappropriate in the judgment of the Indemnified Party for the same counsel to represent both the Indemnified Party and the Indemnifying Party, (vii) the Indemnified Party elects to pursue one or more defenses or counterclaims available to it that are inconsistent with one or more of those that are being pursued by the Indemnifying Party in respect of such Third-Party Claim or any litigation relating thereto, (viii) the Third Party Claim involves a material customer or material supplier of the Indemnified Party, or (ix) the Indemnifying Party fails to vigorously defend the Third Party Claim.
(e) If the Indemnifying Party will assume the defense of any judgmentThird Party Claim, enter into any settlement or otherwise dispose of such Damages, provided it obtains the Indemnifying Party will obtain the prior written consent of the Indemnified Party before entering into any settlement of, consenting to the entry of any judgment with respect to or ceasing to defend such Third Party Claim.
(f) Where the Buyer is the Indemnifying Party, not the indemnification required hereunder in respect of a Third Party Claim will be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or within 10 days following the Indemnifying Party’s receipt of notice that Losses have been incurred. Where a Seller is the Indemnifying Party, the Escrow Agreement shall contain provisions directing the Escrow Agent, acting upon the instruction of the Buyer at Buyer’s discretion, to immediately sell the Kitov Securities in the Escrow Fund in the event of any indemnification obligations of Sellers and/or Investors to Company and/or Buyer Indemnified Parties and, subject to resolution of any dispute as shall be unreasonably withheld or delayedset forth in the Escrow Agreement, the remittance to Buyer of the proceeds of such sale, prior to any actual forfeiture of such securities held in the Escrow Fund.
iv(g) Notwithstanding the provisions of Section 11.13, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which a Proceeding in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Proceeding or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(h) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for entitled to require that any settlement Proceeding be made or brought against any other disposition of Person before a Proceeding is brought or claim is made against it hereunder by the Indemnified Party.
(i) In the event any Damages by an Indemnified Party has a claim against any Indemnifying Party hereunder that is reached without the written consent of such Indemnifying Party. The Indemnified Party will does not admit any liability with respect to, or settle, compromise or discharge, any involve a Third Party claim without first offering Claim being asserted against or sought to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimbe collected from such Indemnified Party, the Indemnified Party will cooperate in deliver notice of such claim with reasonable promptness to the defense or prosecution thereof and Indemnifying Party, provided that the failure to so notify an Indemnifying Party will furnish such records, information and testimony, provide such witnesses including not relieve the Indemnifying Party of its obligations under this ARTICLE 10 except to the extent possible, former employees (and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded only to the extent) that the Indemnifying Party tois materially prejudiced by reason of such failure, and reasonable retention will not relieve such Indemnifying Party from any other obligation that it may have to an Indemnified Party other than under this ARTICLE 10. If the indemnifying Party does not notify the Indemnified Party within 20 days following its receipt of such notice that the Indemnifying Party disputes its Liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party of, records in such notice will be conclusively deemed a Liability of the Indemnifying Party hereunder and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The the Indemnifying Party will reimburse pay the amount of such Liability to the Indemnified Party on demand subject to the limitations set forth in this ARTICLE 10.
(j) If the Indemnifying Party agrees that it has an indemnification obligation under this ARTICLE 10 but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party will pay such lesser amount promptly to the Indemnified Party, subject to the limitations set forth in this ARTICLE 10, without prejudice to or waiver of the Indemnified Party’s claim for all its reasonable out-of-pocket expenses incurred in connection with such cooperationthe difference.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of All claims for indemnification by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding Buyer Indemnitee or a Seller Indemnitee (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) shall promptly be asserted and resolved as set forth in this Section 11.4. As soon as is reasonably practicable after an Indemnified Party or any of its respective Affiliates, Representatives, successors and permitted assigns, as the case may be, becomes aware of any claim for which it is entitled to recover Losses under this Article XI, such Indemnified Party shall notify the other Party party (the “Indemnifying Party”) in writing (an the “Indemnification Claim Notice”). , which shall describe the claim in reasonable detail and shall specify, in reasonable detail, to the extent known, the facts underlying the nature of the claim and the basis for indemnification, and in furtherance of the foregoing, in the event of any claim for indemnification hereunder resulting from or in connection with any claim or Legal Proceeding by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any response to the asserted claim is required, and in any event, within five (5) Business Days following receipt of notice thereof (or as soon as practicable prior to the expiration of the response period if less than ten (10) Business Days); provided, however, that no delay on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is materially prejudiced thereby.
(b) The Indemnifying Party and shall have 30 days from the personal delivery or receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party: (i) whether or not the Indemnifying Party disputes its liability to the Indemnified Party with respect to such claim or demand; and (ii) in the case of a third party claim, whether or not it will defend the Indemnified Party against such claim or demand. If the Indemnifying Party declines to defend the claim or demand, then the reasonable costs and expenses incurred by the Indemnified Party in defending such claim or demand shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its optionbe a liability of, and shall be paid by, the Indemnifying Party may assume if the defense Indemnifying Party does not dispute its liability or if the Indemnifying Party does dispute its liability and the resolution of any Third such dispute is against the Indemnifying Party. In the event that the Indemnifying Party claim subject elects to indemnification as provided for in this Section 16.3 by giving written notice to defend the Indemnified Party, it shall so notify the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaintthe Notice Period, if any, but no longer than ** (and the “Election Time Period”); with Indemnifying Party shall defend the Indemnified Party being obligated by appropriate proceedings and shall have the sole power to make all reasonable efforts direct and control such defense including the settlement of any case that involves solely monetary damages without the consent of the Indemnified Party. If any Indemnified Party desires to obtain participate in any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticedefense, solely for claimsit may do so at its sole cost and expense, (i) provided, however, that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between if the Indemnifying Party and the Indemnified PartyParty shall, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice based on advice of counsel to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim NoticeParty, and such failure materially prejudices the defense of such claimhave conflicting or different claims or defenses, then the Indemnifying Party shall be relieved not have control of its responsibility to indemnify such conflicting or differing claims or defenses and the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead a separate counsel for such claims and any local counsel in defenses, at the defense cost and expense (not to be unreasonable) of the Third Party claimIndemnifying Party. Should If the Indemnifying Party assume and continue assumes the defense of a Third Party claimdefense, except so long as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to is in good faith defending such claim or proceeding, the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit shall not settle a claim or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim demand for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested is indemnified by the Indemnifying Party in writing, or (b) without the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to written consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the The Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3shall not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any such claim or demand, except such consent of the Indemnified Party shall not be required with respect to be unreasonably withheld or delayed.
iv) The monetary damage awards (for which the Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by received, as an Indemnified Party that is reached without the written consent unconditional term of such Indemnifying Partysettlement, an unconditional release by claimant or plaintiff from all Losses in connection with such claim or demand). The Indemnified Party will not admit any liability diligently and fully cooperate with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume Party, its counsel, experts and other relevant persons in the defense of the Third Party any claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimdemand including providing access, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded hours, to the Indemnifying Party torelevant facilities and to business records and other documents, and reasonable retention by shall permit them to consult with the employees and counsel and other relevant persons of the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunderParty. The Indemnifying Party will reimburse the Indemnified Party for all shall use its reasonable out-of-pocket expenses incurred efforts to defend all such claims for which it has assumed the defense.
(c) Notwithstanding any other provision, Seller shall be entitled to control in connection with all respects any claims or Legal Proceedings relating to Taxes based on or related to income of Seller or any of its Affiliates and any other claims or Legal Proceedings relating to Taxes of Seller or any of its Affiliates; provided, however, that Buyer shall have the right to participate in any such cooperationLegal Proceeding if the outcome of such proceeding could have an adverse effect on Buyer or the Business, and Seller shall not settle such proceeding without Buyer’s consent, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes Upon becoming aware of any action, claim or proceeding, or a threatened action, claim for or proceeding, by a third party (a "Third Party Claim") with respect to which indemnification an Acquiror Indemnified Party or a Company Indemnified Party (hereinafter collectively referred to as an "Indemnified Party") may be sought entitled to make an indemnification claim pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify Section 7.1 or 7.2 against the other Party for any Acquiror Losses or Company Losses (as the case may be), such Indemnified Party must notify Acquiror or Sellers, whichever is the appropriate indemnifying party hereunder (the “"Indemnifying Party”"), as promptly as practicable, but in any event within 10 days of the Indemnified Party's becoming aware of such Third Party Claim; provided, however, that the failure of the Indemnified Party to so notify the Indemnifying Party will not relieve the Indemnifying Party from liability for such Third Party Claim arising under Section 7.1 or 7.2 unless the failure to so notify the Indemnifying Party materially prejudices the ability of the Indemnifying Party to assert defenses or counterclaims available to the Indemnifying Party with respect to such Third Party Claim.
(b) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are will have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice delivered to the Indemnified Party within ** (or until 20 days thereafter, to defend such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead Claim by all appropriate proceedings at its sole cost and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claimexpense, except as otherwise set forth in this Section 16.3the Escrow Agreement. If, however, the Indemnifying Party will not be liable declines or fails to assume the defense of such Third Party Claim within such 20 day period, then the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of may defend the Third Party claim. Without limiting this Claim by all appropriate proceedings, at the cost and expense of the Indemnifying Party (subject to the limits set forth in Section 16.37.5), any Indemnified Party will be entitled to participate in, but not control, the defense of a and may vigorously and diligently prosecute such Third Party claim for which it has sought indemnification hereunder and Claim to engage counsel a final conclusion. The Party defending such Third Party Claim will have full control of its choice for such purposedefense, including the employment of counsel; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically if requested by the Indemnifying Party in writingdefending such Third Party Claim, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified other Party will control cooperate with the defense), or Party defending such Third Party Claim.
(c) In any Third Party Claim with respect to which indemnification is sought under Section 7.1 or 7.2, the Indemnifying Party no longer satisfies that is not defending such Third Party Claim may participate in such Third Party Claim and retain its own counsel at such Party's own expense. The Party defending the Litigation ConditionsThird Party Claim will at all times use reasonable efforts to keep the other Party reasonably apprised of the status of the defense of such Third Party Claim and to cooperate in the defense of such Third Party Claim.
iii(d) Subject to the Litigation Conditions being satisfied, the Indemnifying No Party will have the sole right to may settle or compromise any Third Party Claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability judgment with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Claim for which indemnification is being sought hereunder without the prior written consent of the Indemnified other Party, not to be unreasonably withheld unless such settlement contains a complete release of such other Party and imposes no financial or delayedother obligation on such other Party.
iv(e) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by If an Indemnified Party claims a right to be indemnified pursuant to this Agreement for Acquiror Losses or Company Losses that is reached without the do not arise from a Third Party Claim, then such Indemnified Party will promptly send written consent notice of such claim to the Indemnifying Party. The Indemnified Party Such notice will not admit any liability with respect to, or settle, compromise or discharge, any Third Party specify the basis for such claim without first offering to in reasonable detail and be accompanied by such other information as may be necessary for the Indemnifying Party to assess the opportunity to assume merits and amount of such claim. As promptly as possible after the defense of the Third Indemnified Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimhas given such notice, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party towill establish the merits and amount of such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five (5) Business Days of the final determination of the merits and reasonable retention by amount of such claim, the Indemnifying Party will pay to the Indemnified Party of, records and information that are reasonably relevant immediately available funds an amount equal to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided claim as determined hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. (i) Each Party shall notify If, subsequent to the other in the event it becomes aware of Closing, any Person entitled to indemnification under this Agreement (an "Indemnified Party") asserts a claim for indemnification for or receives notice of the assertion or commencement of any Third Party Claim as to which such Indemnified Party intends to seek indemnification may under this Agreement, such Indemnified Party shall give reasonably prompt written notice of such claim to the Party from whom indemnification is to be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “an "Indemnifying Party”) in writing (an “Indemnification Claim Notice”"), together with a statement of any available information regarding such claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with "Defense Notice") within 15 days after receipt from the Indemnified Party being obligated to make all reasonable efforts to obtain any of notice of such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticeclaim, solely for claims, (i) that solely seek monetary damages and (ii) as to by which notice the Indemnifying Party expressly agrees shall specify the counsel it will appoint to defend such claim ("Defense Counsel"), to conduct at its expense the defense against such Third Party Claim in writing thatits own name, as between or if necessary in the name of the Indemnified Party; provided, however, that the Indemnified Party shall have the right to approve the Defense Counsel, which approval shall not be unreasonably withheld or delayed. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any Third Party Claim. If the Indemnifying Party and delivers a Defense Notice to the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice will cooperate with and make available to the Indemnifying Party within such assistance and materials as may be reasonably requested by the Election Time PeriodIndemnifying Party, all at the expense of the Indemnifying Party.
(ii) If the Indemnifying Party shall fail to give a Defense Notice, it shall be deemed to have elected not to conduct the defense of the subject Third Party Claim, and in such event the Indemnified Party shall have the right to conduct such defense in good faith. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claimdefends any Third Party Claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify reimburse the Indemnified Party.
ii) Upon assuming Party for the costs and expenses of defending such Third Party Claim upon submission of periodic bills. If the Indemnifying Party elects to conduct the defense of a the subject Third Party claim in accordance with this Section 16.3Claim, the Indemnifying Indemnified Party shall be entitled to appoint lead and any local counsel may participate, at his or its own expense, in the defense of the such Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeClaim; provided, however, that such engagement will Indemnified Party shall be entitled to participate in any such defense with separate counsel at the Indemnified Party’s own expense unless of the Indemnifying Party if (ai) the engagement thereof has been specifically so requested by the Indemnifying Party in writing, to participate or (bii) in the reasonable opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Party has failed that would make such separate representation advisable; and provided, further, that the Indemnifying Party shall not be required to assume pay for more than one counsel for all Indemnified Parties in connection with any Third Party Claim.
(iii) Regardless of which Party defends a Third Party Claim (other than a Third Party Claim relating to Taxes the procedures for which shall be solely and actively further exclusively governed by Section 6(d)), the other Party shall have the right at its expense to participate in the defense and engage of such Third Party Claim, assisted by counsel of its own choosing. The Indemnified Party shall not compromise, settle, default on, or admit liability with respect to a Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, and, if the Indemnified Party settles, compromises, defaults on, or admits liability with respect to a Third Party Claim except in accordance compliance with this Section 16.3 (in which case the foregoing, the Indemnified Party will control the defense)be liable for all costs, expenses, settlement amounts, or (c) other Adverse Consequences paid or incurred in connection therewith and the Indemnifying Party shall have no longer satisfies obligation to indemnify the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnified Party with respect thereto. The Indemnifying Party will have shall not compromise or settle a Third Party Claim (other than a Third Party Claim relating to Taxes the sole right to procedures for which shall be solely and exclusively governed by Section 6(d)) without the consent to of the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Indemnified Party, in its reasonable discretionwhich consent shall not be unreasonably withheld or delayed, will deem appropriate (provided, however that unless such terms shall include compromise or settlement includes as a complete and term thereof an unconditional release of the Indemnified Party from and such compromise or release does not impose any material non-monetary obligations on the Indemnified Party (and all liability monetary obligations are subject to the indemnification provisions of this Agreement) in which case the consent of the Indemnified Party shall not be required.
(iv) After any final decision, judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement with respect thereto)to a Third Party Claim hereunder, the Indemnified Party shall deliver to the Indemnifying Party notice of any sums due and will transfer owing by the Indemnifying Party pursuant to this Agreement with respect to such matter and the Indemnifying Party shall be required to pay all of the sums so due and owing to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal by wire transfer of immediately available funds within ten (10) Business Days after the date of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayednotice.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Centennial Communications Corp /De)
Indemnification Procedure. i(a) Each Within ten (10) Business Days following receipt by an Indemnified Party shall notify the other in the event it becomes aware of notice by a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding third party (including any governmental Governmental Body) of any complaint, dispute or claim or the commencement of any audit, investigation) shall be instituted involving any , action or proceeding with respect to which such Indemnified Party in respect of which indemnity may be sought entitled to indemnification pursuant to this Article 16hereto (a “Third-Party Claim”), such Indemnified Party (shall provide written notice thereof to the “Indemnified Party”) shall promptly notify the other Party party obligated to indemnify under this Agreement (the “Indemnifying Party”) ), provided, however, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability hereunder with respect to such Third-Party Claim only if, and only to the extent that, such failure to so notify the Indemnifying Party prejudices the Indemnifying Party or results in writing (an “Indemnification Claim Notice”)the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are have the subject matter of such proceeding. At its optionright, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving upon written notice assuming full responsibility for any Purchaser Losses or Seller Losses (as the case may be) resulting from such Third-Party Claim delivered to the Indemnified Party within ** twenty (or until such time provided in any applicable extension 20) days thereafter, to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claimThird-Party Claim. In the event, however, that the Indemnifying Party declines or fails to assume the defense of such Third-Party Claim within such twenty (20) day period, then the Indemnifying Indemnified Party shall be relieved have the right, but not the obligation, to assume the defense of its responsibility to indemnify such Third-Party Claim and any Purchaser Losses or any Seller Losses (as the case may be) shall include the reasonable fees and disbursements of counsel for the Indemnified Party as incurred. In any Third-Party Claim for which indemnification is being sought hereunder the Indemnified Party or the Indemnifying Party.
ii) Upon , whichever is not assuming the defense of a Third such Third-Party claim Claim, shall have the right to participate in accordance with this Section 16.3, such matter and to retain its own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party (as the case may be) shall at all times use reasonable efforts to keep the Indemnifying Party shall be entitled to appoint lead and any local counsel in or Indemnified Party (as the case may be) reasonably apprised of the status of the defense of the Third Party claim. Should the Indemnifying Party assume and continue any matter the defense of a Third Party claim, except as otherwise set forth which it is maintaining and to cooperate in this Section 16.3, the Indemnifying Party will not be liable good faith with each other with respect to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for any such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or matter.
(b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the No Indemnified Party will control the defense), may settle or (c) the Indemnifying compromise any Third-Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to Claim or consent to the entry of any judgmentjudgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party (which may not be unreasonably withheld, enter into any settlement delayed or otherwise dispose conditioned), unless the Indemnifying Party fails to assume and maintain the defense of such Damages, on such terms as Third-Party Claim pursuant to Section 9.3(a) after providing a written notice assuming full responsibility thereof to the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the An Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3may not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, settle or compromise any Third-Party Claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent (x) includes an unconditional release of the Indemnified Party and its officers, directors, employees and Affiliates from all liability arising out of, or related to, such Third-Party Claim, (y) does not to be unreasonably withheld contain any admission or delayedstatement suggesting any wrongdoing or liability on behalf of the Indemnified Party and (z) does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.
iv(c) The Indemnifying Party that has assumed In the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by event an Indemnified Party that is reached without the claims a right to payment pursuant hereto with respect to any matter not involving a Third-Party Claim (a “Direct Claim”), such Indemnified Party shall send written consent notice of such claim to the appropriate Indemnifying PartyParty (a “Notice of Claim”). The Such Notice of Claim shall specify in detail the legal basis for and the underlying facts of such Direct Claim. For the avoidance of doubt, the parties agree and understand that Notices of Claim in respect of a breach of a representation or warranty must be delivered prior to the expiration of the survival period for such representation or warranty under Section 9.4. In case the Indemnifying Party disputes the liability asserted under such Direct Claim, the Indemnifying Party shall send a notice of such dispute (an “Objection Notice”) to the Indemnified Party will not admit any within thirty (30) days following its receipt of such Notice of Claim. In the event the Indemnifying Party disputes its liability with respect toto such Direct Claim as provided above, as promptly as possible, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such Direct Claim (by mutual agreement, litigation, arbitration or settleotherwise) and, compromise or dischargewithin ten (10) Business Days following the final determination of the merits and amount of such Direct Claim, any Third Party claim without first offering to the Indemnifying Party the opportunity shall pay to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate immediately available funds in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant an amount equal to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided Direct Claim as determined hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. i) 14.3.1 Each Party shall notify the other in the event it becomes aware of a claim Third Party Claim for which indemnification may be sought pursuant to this Article 16ARTICLE XIV. In case any proceeding Claim (including any governmental investigation) shall be instituted involving any Party or its Indemnitees in respect of which indemnity may be sought pursuant to this Article 16ARTICLE XIV, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”); provided, that the failure to promptly provide an Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations except, and only to the extent, that the Indemnifying Party is actually incrementally damaged as a result of such failure. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any a Third Party claim Claim subject to indemnification as provided for in this Section 16.3 14.3 with competent counsel free of any conflict of interest with the Indemnified Party by giving written notice (a “Defense Election Notice”) to the Indemnified Party within ** thirty (or until such time provided in any 30) days after its receipt of the applicable extension to appropriately answer any complaint, if any, but no longer than ** Indemnification Claim Notice (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, claims (ia) that solely seek monetary damages and (iib) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (ia) and (iib), the “Litigation Conditions”). The If the Indemnifying Party does not deliver a Defense Election Notice to the Indemnified Party may during the applicable Election Time Period, or if any Litigation Condition is not satisfied, the Indemnified Party will assume responsibility for and control such defense if and, without limiting the Litigation Conditions are not satisfiedIndemnifying Party’s indemnification obligations, by written notice to the Indemnifying Party within the Election Time Period. If will reimburse the Indemnified Party fails to promptly provide an Indemnification Claim Noticefor all costs and expenses, and such failure materially prejudices the defense of such claimincluding reasonable attorneys’ fees, then the Indemnifying Party shall be relieved of its responsibility to indemnify incurred by the Indemnified PartyParty in defending itself.
ii) 14.3.2 Upon assuming the defense of a Third Party claim Claim in accordance with this Section 16.314.3, the Indemnifying Party shall be entitled to appoint lead and competent counsel free of any local counsel conflict of interest with the Indemnified Party in the defense of the Third Party claimClaim. Should the Indemnifying Party assume and continue the defense of a Third Party claimClaim, except as otherwise set forth in this Section 16.314.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claimClaim. Without limiting this Section 16.314.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim Claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own cost and expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 14.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) 14.3.3 Subject to the Litigation Conditions being continuing to be satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however however, that such terms (a) shall include a complete and unconditional release of the Indemnified Party from all liability with respect theretothereto and (b) shall not include any admission of fault by, or impose any liability or obligation on, the Indemnified Party), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other entries of judgment, entries into settlements or other dispositions of Damages in connection with a Third Party claims, where claim for which the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.314.3, the Indemnifying Party will only have authority to consent to the entry of any such judgment, enter entry into any such settlement or otherwise dispose such other disposition of such Damages, provided Damages if it obtains the prior written consent of has obtained the Indemnified Party’s prior written consent, not to be unreasonably withheld withheld, conditioned or delayed.
iv) 14.3.4 The Indemnifying Party that has assumed the defense of the Third Party claim Claim in accordance with this Section 16.3 14.3 (and continues to maintain control of such defense pursuant to this Section 14.3) will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the prior written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim Claim in accordance with this Section 16.314.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claimClaim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claimClaim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents Relatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-out of pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Development Collaboration and License Agreement (DBV Technologies S.A.)
Indemnification Procedure. i) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in detail in writing (a “Notice of Claim”) promptly after it becomes aware of claim against it or any event which may give rise to a claim against it, which it believes will or may give rise to a claim for indemnification under the provisions of the indemnity obligations set out in this Clause 34 (an “Indemnification Claim NoticeIndemnified Claim”). The Indemnifying Party and Within fifteen (15) days following receipt of a Notice of Claim from the Indemnified Party shall promptly meet Party, but not later than ten (10) days before the date on which any response to discuss how to respond to any claims that are the subject matter of such proceeding. At its optionlegal process is due, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to shall notify the Indemnified Party within ** (in writing whether or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which not the Indemnifying Party expressly agrees in writing that, as between acknowledges and unconditionally accepts its indemnification obligation and elects to assume control of the defence and settlement of that Indemnified Claim (a “Notice of Election”). Provided that the Indemnifying Party delivers a suitable Notice of Election within the specified period, the Indemnifying Party shall be entitled, at its own expense, to control the conduct, defence and settlement of any litigation and negotiations arising in respect of the Indemnified Claim (subject to Clause 30.9 (IPR Claims)), provided that where there is an impact on the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy will consult with the Indemnified Party and discharge will at all times keep the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”)Indemnified Party informed of all material matters. The Indemnified Party may assume responsibility for shall be entitled to participate and employ legal assistance in any such defense if litigation or negotiations provided that unless the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If participation of the Indemnified Party fails was in response to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then a request by the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal costs and expenses subsequently incurred by such the indemnified party relating to the Indemnified Claim incurred after the Indemnifying Party delivered a Notice of Election, provided that this was delivered in a timely manner. At the request of the Indemnifying Party, the Indemnified Party after shall afford to the date Indemnifying Party reasonable assistance and documentation for the purpose of assumption contesting any Indemnified Claim, and act as or be joined as defendant in legal proceedings. The Indemnifying Party shall promptly reimburse the Indemnified Party for reasonable costs and expenses (including legal fees on a solicitor/own client basis and disbursements and costs of defense investigation) incurred in connection with so doing. If the analysisIndemnifying Party does not deliver a Notice of Election relating to the Indemnified Claim, defense, countersuit or settlement otherwise fails to acknowledge and unconditionally accept its indemnification obligation or to assume the defence of the Third Indemnified Claim within the required notice period, or ceases to defend the Indemnified Claim, the Indemnified Party claimshall have the right to defend the Indemnified Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party, including payment of any judgement or award and the costs of settlement or compromise of the Indemnified Claim. Without limiting this Section 16.3The Indemnifying Party shall promptly reimburse the Indemnified Party for all such costs and expenses (including legal fees on a solicitor/own client basis and disbursements and costs of investigation). At the request of the Indemnified Party, the Indemnifying Party shall assign or otherwise pass through to the Indemnified Party, to the extent that the Indemnifying Party is able, the benefit of any indemnities given to the Indemnifying Party by third parties which are applicable to the Indemnified Claim. The Indemnified Party shall not make any admissions (except as required by court order or applicable regulation) in relation to the Indemnified Claim, without the prior written approval of the Indemnifying Party. The Indemnifying Party shall not cease to defend, compromise or settle any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at Claim without the Indemnified Party’s own expense unless (a) prior written consent, if such cessation, compromise or settlement: would impose or result in the engagement thereof has been specifically requested by the Indemnifying Party in writing, continuation of an injunction or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case other equitable relief upon the Indemnified Party will control Party; or does not include or result in the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional third party’s release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant relating to such settlement or disposal Indemnified Claim. The Parties acknowledge and agree that the terms of such claim prior to the time such payments become due by the Indemnified Party. With this Clause 34.7 shall not apply in respect to all other Damages in connection with Third Party claimsof any IPR Claim, where the Indemnifying Party has assumed the defense of the Third Party claim which shall be handled in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry terms of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedClause 30.9.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Services Concession Agreement
Indemnification Procedure. i(a) Each In the event an Indemnified Party shall notify the other in the event it becomes aware of claim a claim for which indemnification may be sought right to payment pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16Agreement, such Indemnified Party shall send written notice of such claim to the appropriate Indemnifying Party. Such notice shall specify the basis for such claim. As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim but in no event later than 30 days after receipt of such notice and, within five business days of the final determination of the merits and amount of such claim, the Indemnifying Party shall deliver to the Indemnified Party immediately available funds in an amount equal to such claim as determined hereunder.
(the b) Promptly after receipt by a Circuit City Indemnified Person or a Spinco Indemnified Person (in each case, an “Indemnified Party”) of notice by a third party of any complaint or the commencement of any action or proceeding with respect to which indemnification is being sought hereunder, such Indemnified Party shall promptly notify Circuit City Stores, if the other Indemnified Party is a Spinco Indemnified Person, or CarMax, if the Indemnified Party is a Circuit City Indemnified Person (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter , of such proceeding. At its option, complaint or of the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense commencement of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit action or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeproceeding; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from liability for such engagement will be at claim arising under this Agreement or otherwise, unless the Indemnifying Party is materially prejudiced by such failure to so notify. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party’s own expense unless (a) , to assume the engagement thereof has been specifically requested by defense of such action or proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel. In the event, however, that the Indemnifying Party declines or fails to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to the Indemnified Party, in writingeither case in a timely manner, then such Indemnified Party may employ counsel to represent or (b) defend it in any such action or proceeding and the Indemnifying Party has failed shall pay the reasonable fees and disbursements of such counsel as incurred; provided, however, that the Indemnifying Party shall not be required to assume pay the fees and actively further the defense and engage disbursements of more than one counsel for all Indemnified Parties in accordance any jurisdiction in any single action or proceeding. In any action or proceeding with this Section 16.3 (in respect to which case indemnification is being sought hereunder, the Indemnified Party will control or the defense)Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such litigation and to retain its own counsel at such party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any action, the defense of which it is maintaining and to cooperate in good faith with the Indemnifying Party or the Indemnified Party, as the case may be, with respect to the defense of any such action.
(c) the Indemnifying No Indemnified Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to may settle or compromise any claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose judgment with respect to which indemnification is being sought hereunder without the prior written consent of such Damages, on such terms as the Indemnifying Party, in its reasonable discretionunless such settlement, will deem appropriate compromise or consent (providedi) includes an unconditional release of the Indemnifying Party from all liability arising out of such claim, however that (ii) does not contain an admission of guilt and (iii) does not require the Indemnifying Party to make or forego any payment or forego or take any action. An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such terms shall include a complete and settlement, compromise or consent (i) includes an unconditional release of the Indemnified Party from all liability with respect thereto)arising out of such claim, and will transfer to (ii) requires no payment by the Indemnified Party all amounts and (iii) does not contain any equitable order, judgment or term which said in any manner affects, restrains or interferes with the business of the Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, ’s respective Affiliates and does not to be unreasonably withheld or delayedcontain an admission of guilt.
iv(d) The Indemnifying amount of any Loss for which indemnification is provided under this Article IV shall be (i) increased to take account of any net Tax cost incurred by the Indemnified Party that has assumed arising from the defense receipt or accrual of an indemnity payment hereunder (grossed up for such increase) and (ii) reduced to take into account any net Tax benefit realized by the Third Indemnified Party claim in accordance with arising from incurring or paying such Loss. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or incurring or paying any indemnified Loss. Any indemnity payment hereunder shall initially be made without regard to this Section 16.3 will not 4.4(d) and shall be liable for increased or reduced to reflect any settlement such net Tax cost or other disposition net Tax benefit only after the Indemnified Party has actually realized such cost or benefit. For purposes of any Damages by this Agreement, an Indemnified Party shall be deemed to have “actually realized” a net Tax cost or a net Tax benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnified Party is increased above or reduced below, as the case may be, the amount of Taxes that is reached without such Indemnified Party would be required to pay but for the written consent receipt or accrual of such Indemnifying Partyindemnity payment of the incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination with respect to the Indemnified Party’s liability for Taxes, and payments between the Indemnifying Party and the Indemnified Party will not admit shall be made to reflect such adjustments if necessary. Any indemnity payment made pursuant to this Article IV shall relate back to the Redemption and shall for tax purposes be treated by the parties as occurring immediately before the Redemption.
(e) The amount which an Indemnifying Party is required to pay to any liability with Indemnified Party under this Article IV shall be reduced, including retroactively, by any insurance proceeds or other amounts actually recovered by such Indemnified Party in reduction of the related Loss, it being understood and agreed that each such party shall use commercially reasonable efforts to collect any such proceeds or other amounts to which it or any of its Affiliates may be entitled, without regard to whether it is the Indemnifying Party hereunder. No Indemnified Party shall be required, however, to collect any such proceeds or other amounts prior to being entitled to indemnification from an Indemnifying Party hereunder. If any Indemnified Party received an indemnity payment in respect toof a Loss and subsequently receives insurance proceeds or other amounts in respect of such Loss, or settle, compromise or discharge, any Third then the Indemnified Party claim without first offering shall pay to the Indemnifying Party an amount equal to the opportunity to assume difference between (a) the defense sum of the Third Party claim amount of the indemnity payment and the amount of such proceeds or other amounts actually received and (b) the amount of such Loss, adjusted (at such time as appropriate adjustment can be determined) in accordance with this Section 16.3. If the Indemnifying Party chooses each case to defend or prosecute reflect any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant premium adjustment attributable to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Separation Agreement (Carmax Inc)
Indemnification Procedure. i(a) Each Promptly after receipt by an Indemnified Party of a notice from a third party of a claim, dispute, or threatened or filed complaint or the threatened or actual commencement of any audit, investigation, lawsuit, action or proceeding (a “Third Party Claim”) with respect to which such Indemnified Party may be entitled to indemnification hereunder, such Indemnified Party shall notify provide prompt written notice (and in any event within ten (10) Business Days after receiving written notice of the other in Third Party Claim) to the event it becomes aware of a claim for which indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Buyers or the Sellers, whichever is the appropriate indemnifying Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party hereunder (the “Indemnifying Party”); provided, that the failure to so notify the Indemnifying Party shall relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in (x) in writing the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such claim or (an “Indemnification Claim Notice”)y) material prejudice to the Indemnifying Party with respect to such claim. The Indemnifying Party and shall have the right, upon written notice delivered to the Indemnified Party shall promptly meet within thirty (30) days thereafter, to discuss how to respond to any claims that are assume the subject matter defense of such Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel; provided that, prior to the Indemnifying Party assuming control of such defense it shall first verify to the Indemnified Party in writing that such Indemnifying Party shall be fully responsible for all liability relating to such claim for indemnification (subject to the limitations set forth herein) and that such Indemnifying Party shall provide full indemnification (subject to the limitations set forth herein) to the Indemnified Party with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder. At In any Third Party Claim with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, shall have the right to participate in such matter and to retain its optionown counsel at such Party’s own expense. The Indemnifying Party or the Indemnified Party, as the case may be, shall at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of any matter the defense of which they are maintaining and to cooperate fully in good faith with each other with respect to the defense of any such matter. Notwithstanding the foregoing, the Indemnifying Party may not assume control of the defense of any a Third Party claim subject to indemnification as provided for Claim (i) involving potential criminal liability, (ii) in this Section 16.3 by giving written notice to which equitable relief is sought against the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with that the Indemnified Party being obligated determines in good faith could reasonably be expected to make all reasonable efforts materially adversely affect the Indemnified Party and that does not solely involve, and does not continue to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Noticesolely involve, solely monetary damages (other than immaterial equitable relief or other immaterial non-monetary claims that are ancillary to a claim for claimsmonetary damages), (iiii) if the Indemnified Party has been advised by counsel that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as an actual conflict exists between the Indemnifying Party and the Indemnified Party in connection with the defense of such third Person claim and, in the reasonable judgment of counsel to the Indemnified Party, counsel for the Indemnifying Party shall be solely obligated could not adequately represent the interests of the Indemnified Party, (iv) if the Indemnified Party (if a Buyer Indemnified Party) reasonably believes potential Losses related thereto could likely exceed the Indemnity Amount, unless the Indemnifying Party demonstrates to satisfy the reasonable satisfaction of the Indemnified Party that it has the capacity and discharge financial resources to satisfy, and will satisfy, any indemnification obligation beyond the claim in full Deductible (if applicable) and Indemnity Amount that arises from such Third Party Claim or (v) involving a then current customer, supplier or employee of the Indemnified Party as an adverse party (the matters described conditions set forth in clauses (i) and through (ii)v) are, collectively, the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if To the Litigation Conditions are not satisfied, by written notice to extent the Indemnifying Party within elects not, or is not permitted under the Election Time Period. If the Indemnified Party terms hereof, to defend such proceeding, claim or demand, or abandons or fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming diligently pursue the defense of a Third Party Claim, and the Indemnified Party defends against or otherwise deals with any such proceeding, claim in accordance with this Section 16.3or demand, the Indemnified Party may retain counsel, at the expense of the Indemnifying Party shall be entitled (to appoint lead the extent the Third Party Claim is indemnifiable pursuant to Article IX), and any local counsel in control the defense of the Third Party claimsuch proceeding. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for If (A) any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, Litigation Conditions come into existence or (bB) the Indemnifying Party has failed fails to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnified Party will control the may assume its own defense), and seek indemnification hereunder for all reasonable costs and expenses paid or (c) the Indemnifying Party no longer satisfies the Litigation Conditionsincurred in connection with such defense.
iii(b) Subject to the Litigation Conditions being satisfied, the Indemnifying No Indemnified Party will have the sole right to may settle or compromise any claim or consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability judgment with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains indemnification is being sought hereunder without the prior written consent of the Indemnified Indemnifying Party, not to be unreasonably withheld or delayed.
iv(c) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by If an Indemnified Party that is reached without the claims a right to payment pursuant to this Agreement not involving a Third Party Claim, such Indemnified Party shall send written consent notice of such claim to the appropriate Indemnifying Party. The Such notice shall specify in reasonable detail the basis for such claim. As promptly as possible after the Indemnified Party will not admit any liability with respect tohas given such notice, such Indemnified Party and the appropriate Indemnifying Party shall establish the merits and amount of such claim (by mutual agreement, arbitration, litigation or settleotherwise) and, compromise or dischargewithin five (5) Business Days of the final determination of the merits and amount of such claim, any Third Party claim without first offering to (i) if the Indemnifying Party is the opportunity Sellers, the Buyers and the Sellers shall execute joint written instructions directing the Escrow Agent to assume pay from the defense Indemnity Escrow Fund or, if such funds are insufficient, the Sellers shall pay to the Buyers in immediately available funds an amount equal to such claim as determined hereunder, in each case subject to the terms of the Third Party claim in accordance with this Section 16.3. If Article IX, and (ii) if the Indemnifying Party chooses to defend or prosecute any Third Party claimis the Buyers, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including Buyers shall pay to the extent possibleSellers in immediately available funds an amount equal to such claim as determined hereunder, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded each case subject to the Indemnifying Party to, terms of this Article IX.
(d) The procedures governing any claims for indemnification with respect to Tax matters shall be governed by Section 5.6 and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationnot this Section 9.3.
Appears in 1 contract
Sources: Interest Purchase Agreement (Owens & Minor Inc/Va/)
Indemnification Procedure. i(a) Each Any Indemnified Party shall notify the other in the event it becomes aware of a claim for which seeking indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party hereunder (the “Indemnified PartyClaimant”) (other than for a third party claim which is governed by Section 10.6) must give the Indemnifying Party from whom indemnification is claimed prompt written notice of the claim for Damages (a “Demand”) stating the aggregate amount of the Damages or a good faith estimate thereof, in each case to the extent known or determinable at such time; provided that the failure to provide such notice shall promptly notify not relieve the other Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced by the failure of the Claimant, to give such notice.
(b) Upon receipt of a Demand by an Indemnifying Party, such Indemnifying Party shall have thirty (30) days (the “Indemnifying PartyIndemnity Notice Period”), to review and respond by written notice to such Demand (the “Return Notice”) to the Claimant. If the Return Notice does not contest the Demand, or if no Return Notice is delivered to the Claimant by the expiration of the Indemnity Notice Period, then, the Demand shall be conclusively determined in writing the Indemnified Party’s favor for purposes of this Section 10, and the Indemnified Party shall be indemnified by the Indemnifying Party for the amount of the Damages stated in such Demand on demand or, in the case of any notice in which the Damages (an or any portion thereof) are estimated, on such later date when the amount of such Damages (or such portion thereof) becomes finally determined.
(c) If the Return Notice given by the Indemnifying Party disputes the claim or claims asserted in a Demand or the amount of Damages thereof (a “Indemnification Claim NoticeDisputed Claim”), then the Claimant and the Indemnifying Parties shall make a reasonable good faith effort to resolve their differences for a period of thirty (30) days following the receipt by the Claimant of the Return Notice asserting a Disputed Claim. The If the Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both such parties and, in the case of a demand for recovery from the Holdback Shares, shall be furnished to the Escrow Agent, and payment shall be made in accordance with the methodology in Section 10.5(d). If no such agreement can be reached after good faith negotiation within ** thirty (or until such time provided 30) days after delivery of a Return Notice, the matter set forth in the applicable Demand will be resolved in any applicable extension court having jurisdiction over the matter where venue is proper pursuant to appropriately answer any complaintSection 11.9 of this Agreement.
(d) With respect to a Demand made by Parent prior to the expiration of the Escrow Period, if anythe Escrow Agent shall, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s upon receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between joint written instructions or memorandum from both the Indemnifying Party and the Indemnified Party, promptly release and deliver to Parent that number of Holdback Shares (valued at the Release Date Value) representing the amount of Damages in the Demand or, with respect to a claim for Indemnifiable Contractor Matters, Indemnifiable Company Debt or intentional or willful misrepresentation or fraud and if the Holdback Shares that remain are less than the Damages in the Demand, or if the Indemnifying Party shall be solely obligated to satisfy and discharge is a Company Stockholder (other than the claim in full (the matters described in (i) and (iiKey Holder), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice subject in each case to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Noticelimitations set forth in Section 10.3, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall deliver to Parent such Merger Consideration actually received by it (valued at the volume weighted average last sale price or closing price, as applicable, of the Parent Common Stock as quoted on the OTC Bulletin Board (or such stock exchange on which the Parent Common Stock is then traded) for the ten (10) consecutive trading days immediately preceding the date that any such Shares are required to be relieved of its responsibility returned to indemnify the Indemnified Party.
iiParent hereunder) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3or, if such Merger Consideration has been sold, the Indemnifying Party shall be entitled equivalent dollar amount, in each case in an amount necessary to appoint lead and any local counsel satisfy its obligations in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified PartyDemand. With respect to all other a Demand made by a Stockholder Indemnitee, subject to this Section 10.5, Parent shall promptly pay the amount of Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent Demand to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains Stockholder Indemnitees pursuant to their respective pro rata portions indicated on the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedMerger Consideration Certificate.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Indemnification Procedure. (a) Within a reasonable period of time after the incurrence of any Losses by any Person entitled to indemnification pursuant to Section 9.2 hereof (an "Indemnified Party"), including, without limitation, any claim by a third party described in Section 9.5, which might give rise to indemnification hereunder, the Indemnified Party shall deliver to the party from which indemnification is sought (the "Indemnifying Party") a certificate in the form of Exhibit 8 (the "Certificate"), which Certificate shall:
(i) Each state that the Indemnified Party shall notify the other in the event has paid or properly accrued Losses or anticipates that it becomes aware of a claim will incur liability for Losses for which such Indemnified Party is entitled to indemnification may be sought pursuant to this Article 16. Agreement;
(ii) specify in reasonable detail each individual item of Loss included in the amount so stated, the date such item was paid or properly accrued, the basis for any anticipated liability and the nature of the misrepresentation, breach of warranty, breach of covenant or claim to which each such item is related and the computation of the amount to which such Indemnified Party claims to be entitled hereunder; and
(iii) be delivered to the Indemnified Party and, if applicable, the Escrow Agent.
(b) In case any proceeding (including any governmental investigation) the event that the Indemnifying Party shall be instituted involving any object to the indemnification of an Indemnified Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) any claim or claims specified in writing (an “Indemnification Claim Notice”). The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its optionCertificate, the Indemnifying Party may assume shall, within fifteen (15) business days after receipt by the defense Indemnifying Party of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice such Certificate, deliver to the Indemnified Party within ** (or until a notice to such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages effect and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party shall, within the thirty (30) day period beginning on the date of receipt by the Indemnified Party of such objection, attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims to which the Indemnifying Party shall have so objected. If the Indemnified Party and the Indemnifying Party shall succeed in reaching -42- 47 agreement on their respective rights with respect to any of such claims, the Indemnified Party and the Indemnifying Party shall promptly prepare and sign a memorandum setting forth such agreement. Should the Indemnified Party and the Indemnifying Party be unable to agree as to any particular item or items or amount or amounts, then the Indemnified Party and the Indemnifying Party shall submit such dispute to a court of competent jurisdiction. The party which receives a final judgment in such dispute shall be indemnified and held harmless for all reasonable attorney and consultant's fees or expenses by the other party.
(c) Claims for Losses specified in any Certificate to which an Indemnifying Party shall not object in writing within fifteen (15) business days of receipt of such Certificate, claims for Losses covered by a memorandum of agreement of the nature described in paragraph (b), claims for Losses the validity and amount of which have been the subject of judicial determination as described in paragraph (b) and claims for Losses the validity and amount of which shall have been the subject of a final judicial determination, or shall have been settled with the consent of the Indemnifying Party, as described in Section 9.5, are hereinafter referred to, collectively, as "Agreed Claims". Within ten (10) days of the determination of the amount of any Agreed Claims, the Indemnifying Party shall be solely obligated pay to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility (except in the case where a payment has been already effected pursuant to the Escrow Agreement or by way of a reduction of the McSw▇▇▇▇▇ ▇▇▇e and/or the Bass▇▇▇ ▇▇▇e, if applicable, for such defense if Agreed Claims) an amount equal to the Litigation Conditions are not satisfied, Agreed Claim by written wire transfer in immediately available funds to the bank account or accounts designated by the Indemnified Party in a notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
iinot less than two (2) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant business days prior to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayedpayment.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Acquisition Agreement (Global Power Equipment Group Inc/)
Indemnification Procedure. i(a) Each If a Buyer Indemnified Party shall notify the other in the event it becomes aware of or a claim for which Sellers Indemnified Party seeks indemnification may be sought pursuant to under this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 165, such Party party (the “Indemnified Party”) shall promptly notify give written notice to the other Party party (the “Indemnifying Party”) in writing of the facts and circumstances giving rise to the claim. In that regard, if any Action or Liability shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article 5 (an a “Indemnification Claim NoticeThird Party Claim”). The Indemnifying Party and , the Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, notify the Indemnifying Party may of such Third Party Claim in writing, specifying the basis of such claim and the facts and allegations pertaining thereto. The Indemnifying Party, if the Indemnifying Party so elects, shall assume and control the defense thereof (and shall consult with the Indemnified Party with respect thereto), including the employment of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice counsel reasonably satisfactory to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Partypayment of all necessary expenses; provided, that, the Indemnifying Party shall be solely obligated not have the right to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for control of such defense if the Litigation Conditions are not satisfied, by written notice to claim which the Indemnifying Party within seeks to assume control of (1) seeks non-monetary relief, (2) involves criminal or quasi-criminal allegations, (3) involves matters that Buyer reasonably believes, if determined adversely to Buyer, would have an adverse effect on the Election Time Period. If Company, the Business Assets or the Business; (4) involves On-Site Environmental Liabilities or Off-Site Environmental Liabilities, or (5) it is reasonably likely that the
(b) In no event shall the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit pay or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement of any claim or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability consent to any judgment with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such any claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed) if such settlement or judgment would require the Indemnifying Party to pay any amount. The Indemnifying Party may enter into a settlement or consent to any judgment without the consent of the Indemnified PartyParty so long as (i) such settlement or judgment involves monetary damages only that are paid in full by the Indemnified Party and (ii) a term of the settlement or judgment is that the Person or Persons asserting such claim unconditionally release all Indemnified Parties from all Liability with respect to such claim; otherwise the consent of the Indemnified Party shall be required in order to enter into any settlement of, or consent to the entry of a judgment with respect to, any claim, which consent shall not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (XPEL, Inc.)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of Promptly after receipt by a claim for which party entitled to indemnification may be sought pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party hereunder (the “Indemnified Party”) of written notice of the institution of any legal proceeding, or of any claim or demand, asserted by a third party (a “Third Party Claim”) against the Indemnified Party with respect to which a claim for indemnification is to be made pursuant to Section 9.1 or 9.2 herein, the Indemnified Party shall promptly notify give written notice to the other Party party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)of such Third Party Claim. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead participate in and any local counsel in to assume the defense of the such Third Party claim. Should Claim with counsel reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party assume and continue to such Indemnified Party of such assumption of defense, and, provided that the defense of a Third Indemnifying Party claim, except as otherwise set forth in this Section 16.3continues to diligently pursue such defense, the Indemnifying Party will shall not be liable to the such Indemnified Party for any legal or other expenses subsequently incurred by such Indemnified Party after the date of assumption of defense latter in connection with the analysis, defense, countersuit or defense thereof. No Indemnifying Party will enter into any settlement with respect to such Third Party Claim without the prior written consent of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for unless such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless settlement (a) requires solely the engagement thereof has been specifically requested payment of money damages by the Indemnifying Party in writing, or and (b) includes as an unconditional term thereof the Indemnifying Party has failed to assume and actively further release by the defense and engage counsel in accordance with this Section 16.3 (in which case claimant or the plaintiff of the Indemnified Party will control and the defense), persons for whom the Indemnified Party is acting or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, who are acting on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release behalf of the Indemnified Party from all liability with in respect thereto)of the proceeding giving rise to the Third Party Claim.
(b) Any claim by an Indemnified Party on account of Damages which does not result from a Third Party Claim (a “Direct Claim” and, and either a Direct Claim or a Third Party Claim, a “Claim”) will transfer to be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than sixty (60) days after the Indemnified Party all amounts which said becomes aware of such Direct Claim. Such notice by the Indemnified Party will be liable describe the Direct Claim in reasonable detail. The Indemnifying Party will have a period of sixty (60) days within which to pay pursuant respond in writing to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified PartyDirect Claim. With respect to all other Damages in connection with Third Party claims, where If the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3does not so respond within such sixty (60) day period, the Indemnifying Party will be deemed to have authority to consent to accepted such claim, in which event the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim will be required to pay such amounts in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperation9.5 hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mattress Firm Holding Corp.)
Indemnification Procedure. i(a) Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may Any party entitled to be sought pursuant to indemnified under this Article 16. In case any proceeding Agreement (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16, such Party (the an “Indemnified Party”) seeking indemnification for any Losses or potential Losses arising from a claim asserted by a third party against the Indemnified Party (a “Third Party Claim”) shall promptly notify give written notice to the other party required to indemnify such Indemnified Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”). The Written notice to the Indemnifying Party and of the existence of a Third Party Claim shall be given by the Indemnified Party within five Business Days after its receipt of a written assertion of liability from the third party; provided, however, that the Indemnified Party shall promptly meet not be foreclosed from seeking indemnification pursuant to discuss how this Article X by any failure to respond provide timely notice of the existence of a Third Party Claim to any claims the Indemnifying Party except and only to the extent that are the subject matter Indemnifying Party has been materially prejudiced as a result of such proceeding. At its optiondelay.
(b) Except as otherwise provided herein, the Indemnifying Party may assume elect to compromise or defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim. If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within five Business Days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise abandons the defense of any such Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claimsClaim, (i) that solely seek monetary damages the Indemnified Party may pay (without prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third Party Claim and (ii) as to which the costs and expenses of the Indemnified Party incurred in connection therewith shall be indemnifiable by the Indemnifying Party expressly agrees pursuant to the terms of this Agreement. Notwithstanding anything to the contrary contained herein, in writing thatconnection with any Third Party Claim in which the Indemnified Party shall reasonably conclude, as based upon the advice of its counsel, that (x) there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, then the Indemnified Party shall have the right to assume and direct the defense and compromise of such Third Party Claim. In such an event, the Indemnifying Party shall be solely obligated pay the fees and disbursements of counsel to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to each of the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and such failure materially prejudices the defense of such claim, then the Indemnifying Party shall be relieved of its responsibility to indemnify the Indemnified Party.
ii) Upon assuming the defense of a Third Party claim in accordance with this Section 16.3, the Indemnifying Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purpose; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume and actively further the defense and engage counsel in accordance with this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject to the Litigation Conditions being satisfied, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the The Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3may not, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains without the prior written consent of the Indemnified Party, settle or compromise any claim which (A) does not to be unreasonably withheld contain an unconditional release of the Indemnified Party, (B) imposes any liabilities on the Indemnified Party, (C) ascribes any fault on the part of the Indemnified Party or delayed.
iv(D) The does not provide solely for monetary relief. In any event, except as otherwise provided herein, the Indemnified Party and the Indemnifying Party that has assumed may each participate, at their own expense, in the defense of the such Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3Claim. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded shall make available to the Indemnifying Party toany personnel or any books, and reasonable retention by records or other documents within its control that are reasonably necessary or appropriate for such defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding anything to the contrary contained in this Section 10.04(b), in the event prompt action is required with respect to the defense of a Third Party Claim, the Indemnified Party ofshall, records subject to the terms and information that are reasonably relevant conditions of this Article X, have the right to assume the defense of such Third Party claimClaim; provided, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The however, that in the event that the Indemnifying Party will subsequently elects to assume the defense of such Third Party Claim, then the provisions set forth in this Section 10.04(b) shall be applicable and the Indemnifying Party shall, subject to the terms and conditions of this Article X, reimburse the Indemnified Party for all its reasonable out-of-pocket any costs and expenses incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.
(c) Any claim on account of Losses which do not involve a Third Party Claim shall be asserted by written notice given by the party claiming indemnity to the party from which indemnity is sought. The receiving party shall have a period of five (5) Business Days within which to respond thereto. If such party does not respond within such period, such party shall be deemed to have accepted responsibility to make payment, subject to the provisions hereof, and shall have no further right to contest the validity of such claim. If the receiving party does not respond within five (5) Business Days or rejects such claim in connection whole or in part, the party claiming indemnity shall be free to pursue such remedies as may be available to such party by applicable Law.
(d) All amounts owing under this Article X shall bear interest at the Federal Funds Rate computed from the time such Losses were incurred or suffered to the date of payment therefore. Any amount paid by any party hereto to another party hereto pursuant to this Article X shall be treated for all U.S. federal, state and local Tax purposes as an adjustment to the Asset Price, and no party hereto shall take, or permit any of its Affiliates to take any position inconsistent with such cooperationtreatment on any applicable Tax Return or in any judicial or administrative proceeding before any taxing authority or court of law or otherwise.
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Indemnification Procedure. i(a) Each Party shall promptly notify the other Party in writing of any Claim subject to indemnification under Section 9.2 or 9.3. Concurrent with the event it becomes aware provision of a claim for which indemnification may be sought notice pursuant to this Article 16. In case any proceeding (including any governmental investigation) shall be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 16Section 9.4(a), such Party the party seeking indemnification (the “Indemnified Party”) shall promptly notify provide to the other Party copies of any complaint, summons, subpoena or other court filings or correspondence related to such Claim and will give such other information with respect thereto as the other Party (the “Indemnifying Party”) in writing (an “Indemnification Claim Notice”)shall reasonably request. The Indemnifying Party and Indemnified Party shall promptly meet to discuss how to respond to such Claim. Failure to provide prompt notice shall not relieve any claims that are Party of the subject matter of such proceeding. At its optionduty to defend, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 16.3 by giving written notice indemnify, or hold harmless unless and to the Indemnified Party within ** (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than ** (the “Election Time Period”); with the Indemnified Party being obligated to make all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, solely for claims, (i) that solely seek monetary damages and (ii) as to which the Indemnifying Party expressly agrees in writing that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (i) and (ii), the “Litigation Conditions”). The Indemnified Party may assume responsibility for such defense if the Litigation Conditions are not satisfied, by written notice to the Indemnifying Party within the Election Time Period. If the Indemnified Party fails to promptly provide an Indemnification Claim Notice, and extent such failure materially prejudices the defense or settlement of such claimany matter. Each Party agrees that it will use Commercially Reasonable Efforts to minimize the burdens of the litigation on witnesses and on the ongoing business of the Indemnified Parties, then including making reasonable accommodations to witnesses’ schedules when possible and seeking appropriate protective orders limiting the duration and/or location of depositions.
(b) Should an allegedly Indemnifying Party shall be relieved of its responsibility with respect to indemnify the Indemnified Party.
ii) Upon assuming the defense a Claim or Loss dispute that any Claim, Loss, or portion of a Third Claim or Loss (“Disputed Claim”) of which it receives notice pursuant to Section 9.4(a), is an indemnified Claim or Loss, it shall so notify the other Party claim providing written notice in accordance with this Section 16.3sufficient time to permit such other Party to retain counsel and timely appear, the Indemnifying answer and/or move in any such action. In such event, such other Party shall be entitled to appoint lead and any local counsel in the defense of the Third Party claim. Should the Indemnifying Party assume and continue the defense of a Third Party claim, except as otherwise set forth in this Section 16.3, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by defend against such Indemnified Party after the date of assumption of defense in connection with the analysis, defense, countersuit Claim or settlement of the Third Party claim. Without limiting this Section 16.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to engage counsel of its choice for such purposeLoss; provided, however, that such engagement will be at the Indemnified Party’s own expense unless (a) the engagement thereof has been specifically requested by other Party shall not settle any Claim or Loss which it contends is an indemnified Claim or Loss without providing the Indemnifying Party in writingParty, or to the extent reasonably practicable, ten (b10) the Indemnifying Party has failed Business Days’ notice prior to any such settlement and a reasonable opportunity to assume and actively further the defense and engage counsel in accordance with indemnification of such Claim or Loss pursuant to this Section 16.3 (in which case the Indemnified Party will control the defense), or (c) the Indemnifying Party no longer satisfies the Litigation Conditions.
iii) Subject Agreement. If it is determined that a Disputed Claim is subject to the Litigation Conditions being satisfiedindemnification under this Agreement, the Indemnifying Party will have reimburse the sole right to consent to the entry of any judgmentcosts and expenses, enter into any settlement or otherwise dispose of such Damagesincluding reasonable attorneys’ fees, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (provided, however that such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to the Indemnified Party all amounts which said Indemnified Party will be liable to pay pursuant to such settlement or disposal of such claim prior to the time such payments become due by the Indemnified Party. With respect to all other Damages in connection with Third Party claims, where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 16.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Damages, provided it obtains the prior written consent of the Indemnified Party, not to be unreasonably withheld or delayed.
iv) The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 16.3 will not be liable for any settlement or other disposition of any Damages by an Indemnified Party that is reached without the written consent of such Indemnifying Party. The Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party claim in accordance with this Section 16.3. If the Indemnifying Party chooses to defend or prosecute any Third Party claim, the Indemnified Party will cooperate in the defense or prosecution thereof and will furnish such records, information and testimony, provide such witnesses including to the extent possible, former employees and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention Losses suffered by the Indemnified Party of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such cooperationrespect thereto.
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