Notice of Claim; Defense. (a) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insight Enterprises Inc), Agreement and Plan of Merger (Insight Enterprises Inc)
Notice of Claim; Defense. (a) For purposes A Parent Indemnified Person or a Equity Holder Indemnified Person that desires to seek indemnification under any part of this Article VIIIX (each, a an "Indemnified Person") shall give to each party making a responsible or alleged to be responsible for indemnification hereunder (an "Indemnitor") prompt notice of any third-party claim for indemnity that may give rise to any indemnification obligation under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” this Article X, together with the estimated amount of such claim (if then estimable), and the party against whom Indemnitor shall have the right to assume the defense (at its expense) of any such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing through counsel of such Proceeding stating with reasonable specificity Indemnitor's own choosing by so notifying the circumstances Indemnified Persons within fifteen (15) Business Days of the first receipt by such Indemnitor of such notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”)Persons; provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Persons. Failure to give such notice will shall not waive any rights affect the indemnification obligations hereunder in the absence of the Indemnified Party except actual and material prejudice and in such case, only to the extent of such prejudice. If, under applicable standards of professional conduct, a conflict between any Indemnified Persons and any Indemnitor exists in respect of such third-party claim, the rights Indemnitor shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict (but not more than one firm of counsel). The Indemnitor shall be liable for the Indemnifying Party are actually fees and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt expenses of counsel employed by the Indemnifying Party Indemnified Persons for any period during which the Indemnitor has not assumed the defense of any such third-party claim. If the Indemnitor assumes such defense, the Indemnified Persons shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor chooses to defend or prosecute any third-party claim, the Indemnified Persons shall agree to any settlement, compromise or discharge of such noticethird-party claim that the Indemnitor may recommend and that, then upon reasonable notice from the Indemnifying Party to by its terms, discharges the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties Persons from any Liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of the Indemnified Persons, the Indemnitor shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Persons shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnifying Party may elect to control the defense Indemnified Persons or any affiliate of the Indemnified Parties in connection with such Proceeding and Persons or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff for the benefit of each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Person.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Penn America Group Inc), Stock Purchase Agreement (United National Group LTD)
Notice of Claim; Defense. (a) For purposes The Optionee Indemnified Person shall give each Optionor prompt notice of any claim (including third-party claims) that may give rise to any indemnification obligation under this Article VIIIXI (without regard to whether the Indemnification Threshold has been satisfied), a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” together with the estimated amount of such claim, and the Optionors shall have the right to assume the defense (at their expense) of any such third-party against whom such claim is asserted is hereinafter referred to as (other than a Regulatory Action or a Private Litigation) through counsel of their own choosing by so notifying the “Indemnifying Party.” All claims Optionee Indemnified Person within 30 days of the first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Optionor of such Proceeding stating with reasonable specificity notice from the circumstances of the Optionee Indemnified Party’s claim for indemnification (a “Claim Notice”)Person; provided, however, that any failure such counsel shall be reasonably satisfactory to Optionee. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Optionee Indemnified Person and any Optionor exists in respect of such third-party claim, the Optionee Indemnified Person shall be entitled to assume the defense of such third-party claim through counsel of its own choosing and, if the Indemnification Threshold has been satisfied, the Optionors shall pay the reasonable fees and expenses of such counsel. If the Indemnification Threshold has been satisfied, the Optionors shall be liable for the fees and expenses of counsel employed by any Optionee Indemnified Person for any period during which the Optionors have not assumed the defense of any such third-party claim (other than during any period in which the Optionee Indemnified Person will not waive any rights have failed to give notice of the third-party claim as provided above). If the Optionors assume such defense, the Optionee Indemnified Party except Person shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Optionors, it being understood that the Optionors shall control such defense. If the Optionors choose to defend or prosecute a third-party claim, the Optionee Indemnified Person shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights Optionors, the retention, and the provision to Optionors, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Company available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If the Optionors choose to defend or prosecute any third-party claim, the Optionee Indemnified Person shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that the Optionors may recommend and that, then upon reasonable notice by its terms, discharges all the Optionee Indemnified Persons from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of the Optionee Indemnified Person, the Optionors shall pay the fees, charges and disbursements of such counselnot consent to, and the Optionee Indemnified Person shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense of the provides for injunctive or other non-monetary relief affecting any Optionee Indemnified Parties in connection with such Proceeding and Person, (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Optionee Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by third-party claim, or (iii) does not include as an unconditional term thereof the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission obligation to keep all terms and conditions of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)confidential.
Appears in 2 contracts
Samples: Option Agreement (Credit Suisse First Boston Usa Inc), Option Agreement (Pmi Group Inc)
Notice of Claim; Defense. (a) For purposes Purchaser shall give Sellers’ Representative prompt notice of any third-party claim (and in the case of any Tax audit within a ten (10) day period from the date of receipt of any avis de vérification or proposition de rectification) that may give rise to any indemnification obligation under this Article ARTICLE VIII, a party making a claim for indemnity under Section 8.1(atogether with the estimated amount of such claim, and Sellers’ Representative shall have the right to assume the defense (at Sellers’ expense) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom of any such claim is asserted is hereinafter referred to as through counsel of Sellers’ Representative’s own choosing by so notifying Purchaser within thirty (30) days of the “Indemnifying Party.” All claims first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Sellers’ Representative of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder (i) in the absence of actual and material prejudice for the Company and its Subsidiaries and (ii) provided that it does not affect the amount of indemnification due by the Sellers. Sellers shall be liable for the fees and expenses of counsel employed by the Company for any period during which Sellers’ Representative has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will not waive any rights have failed to give notice of the Indemnified Party except third-party claim as provided above) if such third party claim is covered by the Sellers’ indemnification obligations under this Article VIII without regard to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period limitations set forth in Section 8.2(a) has expired without 8.2(b). If Sellers’ Representative assumes such notice being givendefense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Sellers’ Representative. After receipt If Sellers’ Representative chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Sellers’ Representative, the Indemnifying Party retention, and the provision to Sellers’ Representative, of records and information reasonably relevant to such third-party claim, and making employees of the Company available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If Sellers’ Representative chooses to defend or prosecute any third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such noticethird-party claim that Sellers’ Representative may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Affiliates from the Indemnifying Party full amount of liability vis à vis such third-party; provided, however, that, without the consent of Purchaser, Sellers’ Representative shall not consent to, and Purchaser shall not be required to the Indemnified Party, or upon the request of the Indemnified Partyagree to, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements entry of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond any judgment or other security as may be required by enter into any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser; (ii) does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Purchaser Indemnified Parties and their counsel shall reasonably cooperate with Person that is the Indemnifying Party and its counsel in connection with subject of such Proceedingthird-party claim; or (iii) provides for monetary relief that is not indemnified under this ARTICLE VIII by the Sellers. Notwithstanding the foregoing, if Purchaser determines in good faith that there is a reasonable probability that a claim may adversely affect the Indemnifying Party elects not to retain counsel and assume control of such defense (Company, the Purchaser or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (their Affiliates other than with respect as a result of monetary damages for which it would be entitled to full indemnification under this Agreement taking into account the limitations set forth in Section 8.2 and Section 8.9, the Purchaser may, by notice to the Proceeding)Sellers’ Representative, assume the exclusive right to defend, compromise, or different defenses are available with respect to settle such Proceedingclaim, then but the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from Sellers will not be bound by any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control determination of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise a claim so defended or any comprise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall may not be unreasonably delayed or withheld).
Appears in 1 contract
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (athe "INDEMNIFIED Party"), shall give the other party (the "INDEMNIFYING PARTY") For purposes prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIIIIX, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance together with the following provisions. If any estimated amount of such claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify and the Indemnifying Party in writing shall have the right to assume the defense (at the Indemnifying Party's expense) of any such Proceeding stating with reasonable specificity the circumstances claim through counsel of the Indemnified Indemnifying Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure to give such notice will not waive any rights of 's own choosing by so notifying the Indemnified Party except to the extent the rights within 30 days of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After first receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party Indemnified Party; PROVIDED, HOWEVER, that any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchaser Indemnified Person or upon any Seller Indemnified Person, as the request case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. If the Indemnifying Party chooses to defend or prosecute a third-party claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and its Affiliates from the full amount of liability in connection with such third-party claim; PROVIDED, HOWEVER, that, the Indemnifying Party shall not consent to, and the Indemnified Party shall not be required to agree to, the entry of any judgment or enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnified Party or any Affiliate of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable claim by each claimant or plaintiff to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly that is the subject of such third-party claim, or (iii) contains any admission of wrongdoing by the Indemnifying Party. No compromise Targeted Businesses or settlement any of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)their employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sylvan Learning Systems Inc)
Notice of Claim; Defense. (a) For purposes A Parent Indemnified Person or a Shareholder Indemnified Person that desires to seek indemnification under any part of this Article VIIIXI (each, a an "Indemnified Person") shall give to each party making a responsible or alleged to be responsible for indemnification hereunder (an "Indemnitor") prompt notice of any third-party claim for indemnity that may give rise to any indemnification obligation under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” this Article XI, together with the estimated amount of such claim (if then estimable), and the party against whom Indemnitor shall have the right to assume the defense (at its expense) of any such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing through counsel of such Proceeding stating with reasonable specificity Indemnitor's own choosing by so notifying the circumstances Indemnified Persons within fifteen (15) Business Days of the first receipt by such Indemnitor of such notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”)Persons; provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Persons. Failure to give such notice will shall not waive any rights affect the indemnification obligations hereunder in the absence of the Indemnified Party except actual and material prejudice and in such case, only to the extent of such prejudice. If, under applicable standards of professional conduct, a conflict between any Indemnified Persons and any Indemnitor exists in respect of such third-party claim, the rights Indemnitor shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict (but not more than one firm of counsel). The Indemnitor shall be liable for the Indemnifying Party are actually fees and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt expenses of counsel employed by the Indemnifying Party Indemnified Persons for any period during which the Indemnitor has not assumed the defense of any such third-party claim. If the Indemnitor assumes such defense, the Indemnified Persons shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnitor. If the Indemnitor chooses to defend or prosecute any third-party claim, the Indemnified Persons shall agree to any settlement, compromise or discharge of such noticethird-party claim that the Indemnitor may recommend and that, then upon reasonable notice from the Indemnifying Party to by its terms, discharges the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties Persons from any Liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of the Indemnified Persons, the Indemnitor shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Persons shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnifying Party may elect to control the defense Indemnified Persons or any affiliate of the Indemnified Parties in connection with such Proceeding and Persons or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff for the benefit of each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Person.
Appears in 1 contract
Samples: Stock Purchase Agreement (United National Group LTD)
Notice of Claim; Defense. (a) For purposes Purchaser shall give Sellers’ Representative prompt notice of any third-party claim (and in the case of any Tax audit within a ten (10) day period from the date of receipt of any avis de vérification or proposition de rectification) that may give rise to any indemnification obligation under this Article ARTICLE VIII, a party making a claim for indemnity under Section 8.1(atogether with the estimated amount of such claim, and Sellers’ Representative shall have the right to assume the defense (at Sellers’ expense) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom of any such claim is asserted is hereinafter referred to as through counsel of Sellers’ Representative’s own choosing by so notifying Purchaser within thirty (30) days of the “Indemnifying Party.” All claims first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Sellers’ Representative of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder (i) in the absence of actual and material prejudice for the Company and its Subsidiaries and (ii) provided that it does not affect the amount of indemnification due by the Sellers. Sellers shall be liable for the fees and expenses of counsel employed by the Company for any period during which Sellers’ Representative has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will not waive any rights have failed to give notice of the Indemnified Party except third-party claim as provided above) if such third party claim is covered by the Sellers’ indemnification obligations under this ARTICLE VIII without regard to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period limitations set forth in Section 8.2(a) has expired without 8.2(b). If Sellers’ Representative assumes such notice being givendefense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Sellers’ Representative. After receipt If Sellers’ Representative chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Sellers’ Representative, the Indemnifying Party retention, and the provision to Sellers’ Representative, of records and information reasonably relevant to such third-party claim, and making employees of the Company available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If Sellers’ Representative chooses to defend or prosecute any third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such noticethird-party claim that Sellers’ Representative may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Affiliates from the Indemnifying Party full amount of liability vis à vis such third-party; provided, however, that, without the consent of Purchaser, Sellers’ Representative shall not consent to, and Purchaser shall not be required to the Indemnified Party, or upon the request of the Indemnified Partyagree to, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements entry of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond any judgment or other security as may be required by enter into any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser; (ii) does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Purchaser Indemnified Parties and their counsel shall reasonably cooperate with Person that is the Indemnifying Party and its counsel in connection with subject of such Proceedingthird-party claim; or (iii) provides for monetary relief that is not indemnified under this ARTICLE VIII by the Sellers. Notwithstanding the foregoing, if Purchaser determines in good faith that there is a reasonable probability that a claim may adversely affect the Indemnifying Party elects not to retain counsel and assume control of such defense (Company, the Purchaser or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (their Affiliates other than with respect as a result of monetary damages for which it would be entitled to full indemnification under this Agreement taking into account the limitations set forth in Section 8.2 and Section 8.9, the Purchaser may, by notice to the Proceeding)Sellers’ Representative, assume the exclusive right to defend, compromise, or different defenses are available with respect to settle such Proceedingclaim, then but the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from Sellers will not be bound by any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control determination of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise a claim so defended or any comprise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall may not be unreasonably delayed or withheld).
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Notice of Claim; Defense. (a) For purposes Purchaser shall give the Selling Shareholder prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII6, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” together with the estimated amount of such claim, and the party against whom Selling Shareholders shall have the right to assume the defense (at the Selling Shareholders’ expense) of any such claim is asserted is hereinafter referred to as through counsel of the “Indemnifying Party.” All claims Selling Shareholders’ own choosing by so notifying Purchaser within 30 days of the first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with of the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Selling Shareholders of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice will shall not waive affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any rights significant issue between any Purchaser Indemnified Person and any of the Indemnified Party except Selling Shareholders exists in respect of such third-party claim, the Selling Shareholders shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. The Selling Shareholders shall be liable for the reasonable fees and expenses of counsel employed by Purchaser for any period during which the Selling Shareholders have not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give notice of the third-party claim as provided above). If the Selling Shareholders assume such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Selling Shareholders, it being understood that the Selling Shareholders shall control such defense. If the Selling Shareholders choose to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights Selling Shareholders, the retention, and the provision to the Selling Shareholders, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Company available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If the Selling Shareholders choose to defend or prosecute any third-party claim, Purchaser shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that the Selling Shareholders may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Affiliates from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of Purchaser, the Selling Shareholders shall pay the fees, charges and disbursements of such counselnot consent to, and Purchaser shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchaser Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
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Notice of Claim; Defense. (a) For purposes Purchasers shall give each Shareholder prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII, together with the estimated amount of such claim. The Shareholders shall have the right to assume the defense (at the Shareholders' expense) of any such claim through counsel satisfactory to Purchasers in its sole discretion, and approved in writing by the Purchasers. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchasers Indemnified Person and any Shareholder exists in respect of such third-party making claim, the Shareholders shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. The Shareholders shall be liable for the fees and expenses of counsel employed by Purchasers for any period during which the Shareholders have not assumed the defense of any such third-party claim (other than during any period in which Purchasers will have failed to give notice of the third-party claim as provided above). If the Shareholders assume such defense, Purchasers shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Shareholders, it being understood that the Shareholders shall control such defense. If the Shareholders choose to defend or prosecute a claim for indemnity under Section 8.1(a) third-party claim, Purchasers shall cooperate in the defense or 8.1(b) is hereinafter referred prosecution thereof, which cooperation shall include, to as an “Indemnified Party” the extent reasonably requested by the Shareholders, the retention, and the provision to Shareholders, of records and information reasonably relevant to such third-party against whom such claim is asserted is hereinafter referred claim, and making employees of the Company available on a mutually convenient basis to as the “Indemnifying Party.” All claims by provide additional information and explanation of any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisionsmaterials provided hereunder. If the Shareholders choose to defend or prosecute any third-party claim, demandPurchasers shall agree to any settlement, investigation, action compromise or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing discharge of such Proceeding stating third-party claim that the Shareholders may recommend and that, by its terms, discharges Purchasers and the Purchasers Affiliates from the full amount of liability in connection with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)such third-party claim; provided, however, that any failure to give such notice will not waive any rights that, without the consent of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified PartyPurchasers, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and Shareholders shall pay the fees, charges and disbursements of such counselnot consent to, and Purchasers shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchasers or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchasers or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchasers Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
Appears in 1 contract
Notice of Claim; Defense. Each person indemnified under Sections 10.1 and 10.2 above (aan "Indemnified Person") For purposes agrees that, upon the service of this Article VIIIa summons or other initial legal process upon the Indemnified Person in any action or proceeding, a party making a claim for or upon the Indemnified Person's receipt of written notification of the commencement of any investigation, inquiry, or proceeding in respect of which indemnity may be sought by the Indemnified Person under Section 8.1(a10.1 or 10.2 above, the Indemnified Person will promptly give written notice (the "Notice") of such service or 8.1(b) is hereinafter referred notification to as an “Indemnified Party” and the party against from whom indemnification may be sought hereunder (the "Indemnifying Party"). No indemnification provided for in Section 10.1 or 10.2 above shall be available to any Indemnified Person who shall fail so to give the Notice, if the Indemnifying Party to whom such claim is asserted is hereinafter referred to as Notice was not given was unaware of the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claimaction, demandsuit, investigation, action inquiry or proceeding (a “Proceeding”) for to which an Indemnifying Party the Notice would be liable have related, to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the extent the Indemnifying Party in writing was prejudiced by the failure to give the Notice; but the omission so to notify such Indemnifying Party of any such service or notification shall not relieve such Indemnifying Party from any liability which it may have to any Indemnified Person for contribution or otherwise than on account of such Proceeding stating with Sections. An Indemnifying Party shall be entitled at its own expense to participate in the defense of any action, suit or proceeding against, or investigation or inquiry of, an Indemnified Person. An Indemnifying Party shall be entitled, if it so elects within a reasonable specificity the circumstances amount of time after receipt of the Notice, by giving written notice (herein called the "Notice of Defense") to all Indemnified Persons, to assume the entire defense of such action, suit, investigation, inquiry or proceeding, in which event such defense shall be conducted, at the expense of the Indemnifying Party’s claim for indemnification (a “Claim Notice”), by counsel chosen by the Indemnifying Party reasonably satisfactory to the Indemnified Persons; provided, however, that (i) if any failure to give such notice will not waive any rights of Indemnified Person reasonably determines that there may be a conflict between the Indemnified Party except to the extent the rights positions of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties Person in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control conducting the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld).action,
Appears in 1 contract
Samples: And Restated Agreement (Netmed Inc)
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (athe "Indemnified Party"), shall give the other party (the "Indemnifying Party") For purposes prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIIIIX, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance together with the following provisions. If any estimated amount of such claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify and the Indemnifying Party in writing shall have the right to assume the defense (at the Indemnifying Party's expense) of any such claim through counsel of the Indemnifying Party's own choosing by so notifying the Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such Proceeding stating with reasonable specificity the circumstances of notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice will shall not waive affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any rights significant issue between any Purchaser Indemnified Person or any Seller Indemnified Person, as the case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. If the Indemnifying Party chooses to defend or prosecute a third-party claim, the Indemnified Party except shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party are actually and materially prejudiced chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to the extent any settlement, compromise or discharge of such third-party claim that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and its Affiliates from the full amount of liability in connection with such noticethird-party claim; provided, then upon reasonable notice from however, that, the Indemnifying Party to shall not consent to, and the Indemnified PartyParty shall not be required to agree to, the entry of any judgment or upon enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the request Indemnified Party or any Affiliate of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable claim by each claimant or plaintiff to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly that is the subject of such third-party claim, or (iii) contains any admission of wrongdoing by the Indemnifying Party. No compromise Targeted Businesses or settlement any of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)their employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Apollo Investment Fund Iv Lp)
Notice of Claim; Defense. (aUntil the expiration of the indemnification period as set forth in Section 7.1(c) For purposes of this Article VIIIabove, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said each Indemnified Party shall promptly notify give the Indemnifying Party in writing prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article 7, together with the estimated amount of such Proceeding stating with reasonable specificity claim, and the circumstances Indemnifying Party shall have the right to assume the defense (at Indemnifying Party’s sole expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and any Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict, but not more than one firm in any jurisdiction representing all Indemnified Parties. The Indemnifying Party shall be solely liable for the fees and expenses of one counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any such third-party claim (other than during any period in which the Indemnified Party will not waive any rights have failed to give notice of the third-party claim as provided above). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to reasonably participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If Indemnifying Party chooses to defend or prosecute a third-party claim, the Indemnified Party shall reasonably cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party except available on a mutually convenient basis to the extent the rights provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party are actually and materially prejudiced chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to the extent any settlement, compromise or discharge of such third-party claim that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such noticemay reasonably recommend and that, then upon reasonable notice by its terms, discharges the Indemnified Party and its Affiliates from the Indemnifying Party to full amount of liability in connection with such third-party claim; provided, however, that, without the Indemnified Party, or upon the request consent of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Party shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnifying Indemnified Party may elect or any of its Affiliates or (ii) does not include as an unconditional term thereof the giving of a release from all liability with respect to control the defense such claim by each claimant or plaintiff to each of the Indemnified Parties in connection with such Proceeding and (ii) that is the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control subject of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Gulf West Security Network, Inc.)
Notice of Claim; Defense. (a) For purposes Purchaser on one hand and Seller and Members on the other hand shall give each other prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIIIXII, a party making a claim for indemnity under Section 8.1(atogether with the estimated amount of such claim, and Seller shall have the right to assume the defense (at Seller’s expense) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom of any such claim is asserted is hereinafter referred to as through counsel of Seller’s own choosing by so notifying Purchaser within 30 days of the “Indemnifying Party.” All claims first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Seller of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchaser Indemnified Person and Seller exists in respect of such third-party claim, Seller shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. Seller shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which Seller has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will not waive any rights have failed to give notice of the Indemnified Party except third-party claim as provided above). If Seller assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Seller, the rights retention, and the provision to Seller, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Business available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If Seller chooses to defend or prosecute any third-party claim, Purchasers shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that Seller may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and any of its Affiliates from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, Seller shall pay the fees, charges and disbursements of such counselnot consent to, and Purchaser shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any of the Indemnified Parties in connection with such Proceeding and its Affiliates or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchaser Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (Merit Medical Systems Inc)
Notice of Claim; Defense. Purchaser or the Sellers, as the case may be (a) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an the “Indemnified Party” and ”), shall give the other party against whom such claim is asserted is hereinafter referred to as (the “Indemnifying Party.” All claims by ”) prompt notice of any Indemnified Party third-party claim that may give rise to any indemnification obligation under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance this Article IX, together with the following provisions. If any estimated amount of such claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify and the Indemnifying Party in writing shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such Proceeding stating with reasonable specificity the circumstances of notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice will shall not waive affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any rights significant issue between any Purchaser Indemnified Person or any Seller Indemnified Person, as the case may be, and the Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. If the Indemnifying Party chooses to defend or prosecute a third-party claim, the Indemnified Party except shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Targeted Businesses available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party are actually and materially prejudiced chooses to defend or prosecute any third-party claim, the Indemnified Party shall agree to the extent any settlement, compromise or discharge of such third-party claim that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and its Affiliates from the full amount of liability in connection with such noticethird-party claim; provided, then upon reasonable notice from however, that, the Indemnifying Party to shall not consent to, and the Indemnified PartyParty shall not be required to agree to, the entry of any judgment or upon enter into any settlement that (i) provides for injunctive or other non-monetary relief affecting the request Indemnified Party or any Affiliate of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable claim by each claimant or plaintiff to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly that is the subject of such third-party claim, or (iii) contains any admission of wrongdoing by the Indemnifying Party. No compromise Targeted Businesses or settlement any of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)their employees.
Appears in 1 contract
Notice of Claim; Defense. (a) For purposes Purchaser shall give Parent and Seller prompt notice of any third-party claim (other than claims arising out of any pending or threatened audit, notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim which could affect the liability for Taxes of Parent or Seller) that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(atogether with the estimated amount of such claim, and Parent and Seller shall have the right to assume the defense (at their expense) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom of any such claim is asserted is hereinafter referred to as through counsel of their own choosing by so notifying Purchaser within 30 days of the “Indemnifying Party.” All claims receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted Parent and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Seller of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Parent and Seller shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which neither Parent nor Seller has assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give such notice will not waive any rights of the Indemnified Party except third-party claim as provided above). If Parent or Seller assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Parent or Seller, it being understood that Parent or 50 Seller shall control such defense. If Parent or Seller chooses to defend or prosecute a third-party claim, Purchaser shall cooperate at Parent's or Seller's expense (other than Purchaser's expenses for counsel which shall be employed at Purchaser's own expense and Purchaser's internal costs) in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Parent or Seller, the rights retention, and the provision to Parent or Seller, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Company available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If Parent or Seller chooses to the extent that defend or prosecute any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such noticethird-party claim that Parent or Seller may recommend and that, then upon reasonable notice by its terms, discharges Purchaser from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and shall pay third-party claim. None of Purchaser, any of its Affiliates or the feesCompany may settle or otherwise dispose of any Claim for which Parent or Seller may have a liability under this Agreement without the prior written consent of Parent or Seller, charges and disbursements as the case may be, which consent may be withheld in the sole discretion of such counselparty, and shall take all actions necessary, including but not limited to the posting of unless Purchaser fully indemnifies such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, party in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available writing with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable liability in a manner satisfactory to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm such party. Neither Parent nor Seller shall be deemed reasonably acceptableliable under this Section 8.2(a) in connection with such Proceeding and assume control of the defense in connection with such Proceedingfor any settlement, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be discharge effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall may not be unreasonably delayed withheld in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or withheld)to induce a third party to assert a claim subject to indemnification hereunder.
Appears in 1 contract
Notice of Claim; Defense. Any party seeking to be indemnified hereunder (a) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an the “Indemnified Party” ”) shall, within thirty (30) days following discovery of the matters giving rise to a Loss, notify the party from whom indemnity is sought (the “Indemnity Obligor”) in writing of any claim for recovery, specifying in reasonable detail the nature of the Loss, the nature of the underlying claim, the section of this Agreement under which the claim arises and, which party in interest is responsible for the breach or failure to act, and the party against whom such claim is asserted is hereinafter referred amount of the liability estimated to as the “Indemnifying Party.” All claims arise therefrom (provided that a failure by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party to deliver such notice as provided herein shall not relieve the Indemnity Obligor of its obligations under this Agreement except and only to the extent the Indemnity Obligor is asserted against or sought actually prejudiced by such failure to be collected from such Indemnified Party, said give notice). The Indemnified Party shall promptly notify not settle or compromise any claim by a third party for which it is entitled to indemnification hereunder, without the Indemnifying Party in writing prior written consent of the Indemnity Obligor (which shall not be unreasonably withheld or delayed) unless a suit shall have been instituted against it and the Indemnity Obligor either (i) shall not have undertaken the defense of such Proceeding stating with reasonable specificity suit after notification thereof or (ii) is demonstrably unable to undertake the defense of such suit or satisfy the claims arising thereunder. If the facts pertaining to a Loss arise out of the claim of any third party, or if there is any claim against a third party available by virtue of the circumstances of the Loss, the Indemnity Obligor may, by giving written notice to the Indemnified Party’s claim for indemnification Party within fifteen (a “Claim Notice”)15) days following its receipt of the notice of such claim, elect to assume the defense or the prosecution thereof, including, without limitation, the employment of counsel, accountants, consultants or other experts at its cost and expense; provided, however, that any failure to give such notice will not waive any rights of during the interim the Indemnified Party except shall use commercially reasonable efforts to the extent the rights of the Indemnifying Party are actually and materially prejudiced protect against further damage or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than loss with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Loss. The Indemnified Party shall be reimbursed promptly have the right to employ counsel separate from counsel employed by the Indemnifying Party. No compromise or settlement Indemnity Obligor in any such action and to participate therein, but the fees and expenses of such claims may counsel shall be effected by the Indemnifying Party without at the Indemnified Party’s prior written consent unless: (A) there is no finding own expense. Whether or admission of any violation of any Legal Requirement; (B) not the sole relief provided is monetary damagesIndemnity Obligor chooses so to defend or prosecute such claim, none of which are required to be paid by all the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of parties hereto shall cooperate in the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed defense or withheld)prosecution thereof.
Appears in 1 contract
Samples: Asset Purchase Agreement
Notice of Claim; Defense. An Indemnified Party shall give the applicable Indemnifying Party prompt written notice of any third-party claim (aa "THIRD-PARTY CLAIM") For purposes of that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance together with the following provisions. If any estimated amount of such claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify and the Indemnifying Party in writing shall have the right to assume the defense (at the Indemnifying Party's expense) of any such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights through counsel of the Indemnifying Party's own choosing by so notifying such Indemnified Party are actually and materially prejudiced or to within 30 days of the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After first receipt by the Indemnifying Party of such notice, then upon reasonable written notice from the Indemnifying Party such Indemnified Party; PROVIDED, HOWEVER, that any such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such written notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and the Indemnifying Party exists in respect of such Third-Party Claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any Page 57 such Third-Party Claim (other than during any period in which the Indemnified Party will have failed to give written notice of the Third-Party Claim as provided above). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend or upon prosecute a Third-Party Claim, the request Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to Indemnifying Party, of records and information reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third-Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third-Party Claim that the Indemnifying Party may recommend and that, by its terms, discharges the Indemnified Party and its Affiliates from the full amount of liability in connection with such Third-Party Claim; PROVIDED, HOWEVER, that, without the consent of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Party shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnifying Indemnified Party may elect to control the defense or any Affiliate of the Indemnified Parties in connection with such Proceeding and Party or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable claim by each claimant or plaintiff to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party that is the subject of such Third-Party Claim. The Indemnified Party shall be reimbursed promptly by not agree to any settlement of, or entry of any judgment arising from, any Third-Party Claim without the prior written consent of the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed withheld or withheld)delayed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Granite Broadcasting Corp)
Notice of Claim; Defense. The Sellers Representatives shall give Purchaser prompt notice of any third-party claim that may give rise to any indemnification obligation under this Section 9.3, together with the estimated amount of such claim, and Purchaser shall have the right to assume the defense (aat the Purchaser's expense) For purposes of this Article VIIIany such claim through counsel of Purchaser's own choosing by so notifying the Sellers Representatives within sixty (60) days of the first receipt by Purchaser of such notice from the Sellers Representatives. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Seller Indemnified Person and Purchaser exists in respect of such third-party making claim, Purchaser shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. Purchaser shall be liable for the reasonable fees and expenses of counsel employed by Purchaser for any period during which Purchaser has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give notice of the third-party claim as provided above). If Purchaser assumes such defense, Sellers shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Purchaser. If Purchaser chooses to defend or prosecute a claim for indemnity under Section 8.1(a) third-party claim, Sellers shall cooperate in the defense or 8.1(b) is hereinafter referred prosecution thereof, which cooperation shall include, to as an “Indemnified Party” the extent reasonably requested by Purchaser, the retention, and the provision to Purchaser, of records and information reasonably relevant to such third-party against whom such claim is asserted is hereinafter referred claim, and making employees of the Company available on a mutually convenient basis to as the “Indemnifying Party.” All claims by provide additional information and explanation of any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisionsmaterials provided hereunder. If Purchaser chooses to defend or prosecute any third-party claim, demandSellers shall agree to any settlement, investigation, action compromise or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing discharge of such Proceeding stating third-party claim that Purchaser may recommend and that, by its terms, discharges Sellers and their Affiliates from the full amount of liability in connection with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)such third-party claim; provided, however, that any failure to give such notice will not waive any rights that, without the consent of the Indemnified Party except Sellers Representative, Purchaser shall not consent to, and the Sellers Representative shall not be required to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Partyagree to, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements entry of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond any judgment or other security as may be required by enter into any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Sellers or any Affiliate of the Indemnified Parties in connection with such Proceeding and Sellers; (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Seller Indemnified Party shall be reimbursed promptly Person that is the subject of such third-party claim; or (iii) provides for monetary relief that is not indemnified under this Section 9.3 by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Purchaser.
Appears in 1 contract
Samples: Share Purchase and Contribution Agreement (Paradigm Ltd.)
Notice of Claim; Defense. (a) For purposes Each Indemnified Person shall give the indemnifying party prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” together with the estimated amount of such claim, and the indemnifying party against whom shall have the right to assume the defense (at such party’s expense) of any such claim is asserted is hereinafter referred to as through counsel of the “Indemnifying Party.” All claims indemnifying party’s own choosing by any so notifying the Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with Person within 30 days of the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify first receipt by the Indemnifying Party in writing indemnifying party of such Proceeding stating with reasonable specificity the circumstances of notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”)Person; provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Person. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Person and an indemnifying party exists in respect of such third-party claim, the indemnifying party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. The indemnifying party shall be liable for the fees and expenses of counsel employed by the Indemnified Person for any period during which the indemnifying party has not assumed the defense of any such third-party claim (other than during any period in which the Indemnified Person will not waive any rights have failed to give notice of the third-party claim as provided above). If the indemnifying party assumes such defense, the Indemnified Party except Person shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. If the indemnifying party chooses to defend or prosecute a third-party claim, the Indemnified Person shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights indemnifying party, the retention, and the provision to the indemnifying party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Division available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If the indemnifying party chooses to defend or prosecute any third-party claim, the Indemnified Person shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that the indemnifying party may recommend and that, then upon reasonable notice by its terms, discharges the Indemnified Persons from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, the indemnifying party shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Person shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense of provides for injunctive or other non-monetary relief affecting the Indemnified Parties in connection with such Proceeding and Persons or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
Appears in 1 contract
Notice of Claim; Defense. (a) For purposes of The indemnified party under this Article VIII8 shall give the indemnifying party prompt notice of any third-party claim (other than claims arising out of any pending or threatened audit, a notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim which could affect the liability for Taxes of the indemnifying party) that may give rise to any indemnification obligation under this Article 8, together with the estimated amount of such claim; provided, however, that no delay on the part of the indemnified party making a claim for indemnity under Section 8.1(ain notifying the indemnifying party shall relieve the indemnifying party of any liability or obligation hereunder except to the extent of any damage or liability caused by or arising out of such failure. The indemnifying party shall have the right to assume the defense (at the indemnifying party's expense) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom of any such claim is asserted is hereinafter referred to as through counsel of the “Indemnifying Party.” All claims indemnifying party's own choosing by any Indemnified Party under Section 8.1(aso notifying the indemnified party within sixty (60) or 8.1(b) hereof shall be asserted and resolved in accordance with days of the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify receipt by the Indemnifying Party in writing indemnifying party of such Proceeding stating with reasonable specificity notice from the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)indemnified party; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except counsel shall be reasonably satisfactory to the extent the rights of the Indemnifying Party are actually indemnified party; and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such noticeprovided further, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party indemnifying party may elect only assume control of such defense if (A) it acknowledges in writing to control the defense of indemnified party that any damages, fines, costs or other liabilities that may be assessed against the Indemnified Parties indemnified party in connection with such Proceeding suit or proceeding constitute Losses for which the indemnified party shall be indemnified pursuant to this Article 8 and (B) the ad damnum is less than or equal to the amount of Losses for which the indemnifying party is liable under this Article 8 and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects indemnifying party may not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense of a suit or proceeding involving criminal liability or in which equitable relief is sought against the indemnified party. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense of any such third-party claim (other than during any period in which the indemnified party will have failed to give notice of the third-party claim as provided above). If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. If the indemnifying party chooses to defend or prosecute a third-party claim, the indemnified party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the indemnifying party, the retention, and the provision to the indemnifying party, of records and information reasonably relevant to such third-party claim, and in the event the Purchaser is the indemnified party, making employees of the Company available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder. If the indemnifying party chooses to defend or prosecute any third-party claim, the indemnified party shall agree to any reasonable settlement, compromise or discharge of such third-party claim that the indemnifying party recommends and that, by its terms, discharges the indemnified party from the full amount of liability in connection with such Proceeding, and third-party claim. Neither the reasonable fees, charges and disbursements indemnified party nor any of counsel selected by each Indemnified Party shall be reimbursed promptly by its Affiliates may settle or otherwise dispose of any Claim for which the Indemnifying Party. No compromise or settlement of such claims indemnifying party may be effected by the Indemnifying Party have a liability under this Agreement without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (indemnifying party, which consent shall not be unreasonably delayed withheld. The indemnifying party shall not be liable under this Article 8 for any settlement, compromise or withheld)discharge effected without its consent in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
Appears in 1 contract
Notice of Claim; Defense. Purchaser shall give Guarantors' Representative prompt notice of any third-party claim that may give rise to any indemnification obligation under this Section 9.1, together with the estimated amount of such claim, and Guarantors' Representative shall have the right to assume the defense (aat the Purchaser's expense, which expenses shall constitute Purchaser's Losses) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom any such claim is asserted is hereinafter referred to as through counsel of Guarantors' Representative's own choosing by so notifying Purchaser within sixty (60) days of the “Indemnifying Party.” All claims first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Guarantors' Representative of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If Guarantors' Representative assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Guarantors' Representative. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchaser Indemnified Person and Guarantors' Representative exists in respect of such third-party claim, the Purchaser shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. The reasonable fees and expenses of counsel employed by Purchaser for any period during which Guarantors' Representative has not assumed the defense of any such third-party claim (other than during any period in which the Sellers Representatives will not waive any rights have failed to give notice of the Indemnified Party except third-party claim as provided above). If Guarantors' Representative assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Guarantors' Representative. If Guarantors' Representative chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Guarantors' Representative, the rights retention, and the provision to Guarantors' Representative, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Company available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If Guarantors' Representative chooses to defend or prosecute any third-party claim, Purchaser shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that Guarantors' Representative may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Affiliates from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of Purchaser, Guarantors' Representative shall pay the fees, charges and disbursements of such counselnot consent to, and Purchaser shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctivc or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser; (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchaser Indemnified Party shall be reimbursed promptly Person that is the subject of such third-party claim; or (iii) provides for monetary relief that is not indemnified under this ARTICLE IX by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Guarantors.
Appears in 1 contract
Samples: Share Purchase and Contribution Agreement (Paradigm Ltd.)
Notice of Claim; Defense. (a) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Each Indemnified Party shall promptly notify give the Indemnifying Party in writing prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article 6, together with the estimated amount of such Proceeding stating with reasonable specificity claim, and the circumstances Indemnifying Party shall have the right to assume the defense (at Indemnifying Party’s sole expense) of any such claim through counsel of the Indemnifying Party’s own choosing by so notifying the Indemnified Party within 30 days of the first receipt by the Indemnifying Party of such notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure such counsel shall be reasonably satisfactory to the Indemnified Party. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and any Indemnifying Party exists in respect of such third-party claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict, but not more than one firm in any jurisdiction representing all Indemnified Parties. The Indemnifying Party shall be solely liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any such third-party claim (other than during any period in which the Indemnified Party will not waive any rights have failed to give notice of the third-party claim as provided above). If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If Indemnifying Party chooses to defend or prosecute a third-party claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Indemnified Party except available on a mutually convenient basis to the extent the rights provide additional information and explanation of any materials provided hereunder. The Indemnified Party shall agree to any settlement, compromise or discharge of such third-party claim that the Indemnifying Party are actually may recommend and materially prejudiced or to that, by its terms, discharges the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Indemnified Party of such notice, then upon reasonable notice from the Indemnifying Party to full amount of liability in connection with such third-party claim; provided, however, that, without the Indemnified Party, or upon the request consent of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Party shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense of provides for injunctive or other non-monetary relief affecting the Indemnified Parties in connection with such Proceeding and Party or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then claim by each claimant or plaintiff to each the Indemnified Parties shall retain counsel reasonably acceptable to Person that is the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Partythird-party claim. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld).22
Appears in 1 contract
Samples: Purchase Agreement (NutriBand Inc.)
Notice of Claim; Defense. (a) For purposes If any Proceeding is filed or initiated against any party entitled to the benefit of this Article VIIIindemnity hereunder, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof written notice thereof shall be asserted given to the indemnifying party as promptly as practicable (and resolved in accordance with any event within ten (10) days after the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing of such Proceeding stating with reasonable specificity the circumstances service of the Indemnified Party’s claim for indemnification (a “Claim Notice”citation or summons); provided, however, that the failure of any failure indemnified party to give such timely notice will shall not waive any affect rights of the Indemnified Party to indemnification hereunder except to the extent that the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without indemnifying party demonstrates actual damage caused by such notice being givenfailure. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from if the Indemnifying Party indemnifying party shall acknowledge in writing to the Indemnified Party, or upon indemnified party that the request of indemnifying party shall be obligated under the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice terms of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense indemnity hereunder in connection with such Proceeding, then the indemnifying party shall be entitled, if it so elects, to take control of the defense and investigation of such Proceeding and to employ and engage attorneys of its own choice to handle and defend the same, such attorneys to be reasonably satisfactory to the indemnified party, at the indemnifying party's cost, risk and expense (unless (a) the indemnifying party has failed to assume the defense of such Proceeding or (b) the named parties to such Proceeding include both of the indemnifying party and the reasonable feesindemnified party, charges and disbursements of the indemnified party and its counsel selected by each Indemnified Party determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate), and to compromise or settle such Proceeding, which compromise or settlement shall be reimbursed promptly by made only with the Indemnifying Partywritten consent of the indemnified party, such consent not to be unreasonably withheld. No The indemnified party may withhold such consent if such compromise or settlement would adversely affect the conduct of business or requires less than an unconditional release to be obtained. If (i) the indemnifying party fails to assume the defense of such Proceeding within fifteen (15) days after receipt of notice thereof pursuant to this Section 18.4, or (ii) the named parties to such Proceeding include both the indemnifying party and the indemnified party and the indemnified party and its counsel determine in good faith that there may be one or more legal defenses available to such indemnified party that are different from or additional to those available to the indemnifying party and that joint representation would be inappropriate, the indemnified party against which such Proceeding has been filed or initiated will (upon delivering notice to such effect to the indemnifying party) have the right to undertake, at the indemnifying party's cost and expense, the defense, compromise or settlement of such claims may Proceeding on behalf of and for the account and risk of the indemnifying party; provided, however, that such Proceeding shall not be effected by the Indemnifying Party compromised or settled without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (indemnifying party, which consent shall not be unreasonably delayed withheld. In the event the indemnified party assumes defense of the Proceeding, the indemnified party will keep the indemnifying party reasonably informed of the progress of any such defense, compromise or withheldsettlement and will consult with, when appropriate, and consider any reasonable advice from, the indemnifying party of any such defense, compromise or settlement. The indemnifying party shall be liable for any settlement of any action effected pursuant to and in accordance with this Section 18.4 and for any final judgment (subject to any right of appeal), and the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any Liability by reason of such settlement or judgment. Regardless of whether the indemnifying party or the indemnified party takes up the defense, the indemnifying party will pay reasonable costs and expenses in connection with the defense, compromise or settlement for any Proceeding under this Section 18.4 as they come due, subject to the limitations set forth in this Section 18.4. The indemnified party shall cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such Proceeding and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, participate in the investigation, trial and defense of such Proceeding and any appeal arising therefrom. In the event the indemnifying party does not pay all expenses due under this Section 18.4 when due, the indemnified party shall be entitled to settle any Proceeding under this Section 18.4 without the consent of the indemnifying party and without waiving any rights the indemnified party may have against the indemnifying party.
Appears in 1 contract
Samples: Agreement (Endocare Inc)
Notice of Claim; Defense. Scorpio Gold (aon behalf of itself, Scorpio Sub and, if applicable, the other Scorpio Indemnified Persons) For purposes on one hand, and Royal Standard (on behalf of itself, Manhattan and, if applicable, on behalf of the other Royal Standard Indemnified Persons) on the other hand, shall give each other prompt written notice of any third-party Claim that may give rise to any indemnification obligation under this Article VIII9, a party making a claim for indemnity under Section 8.1(atogether with the estimated amount of such Claim, the method of computation thereof and the basis of such Claim (to the extent known, all with reasonable particularity) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred potentially subject to as indemnifying (the “Indemnifying Party.” All claims ”). The Indemnifying Party shall have the right to assume the defense (at its own expense) of any such Claim through counsel of its choosing by any so notifying the party potentially being indemnified (the “Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “ProceedingParty”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify in writing within 15 days of the first receipt by the Indemnifying Party in writing of such Proceeding stating with reasonable specificity the circumstances of notice from the Indemnified Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure such counsel must be reasonably satisfactory to the Indemnified Party and must not have any conflict with respect to such action or Indemnified Party. Failure to give such notice will not waive affect the indemnification obligations hereunder except to the extent of actual prejudice. If the Indemnified Party is a subject of any rights such Claim or action, and under applicable standards of professional conduct, a conflict with respect to any significant issue between any Indemnified Party and any Indemnifying Party reasonably exists in respect of such third-party Claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense of any such third-party Claim, other than during any period in which the Indemnified Party has failed to give notice of the third-party Claim as provided above. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the Indemnifying Party’s counsel. If the Indemnifying Party chooses to defend or prosecute a third-party Claim, the Indemnified Party shall cooperate in the defense or prosecution thereof, which cooperation will include, to the extent reasonably requested, the provision to the Indemnifying Party of records and information reasonably relevant to such third-party Claim, and making personnel of the Indemnified Party except available on a mutually convenient basis to the extent the rights provide additional information and explanation of any materials provided hereunder. If the Indemnifying Party are actually and materially prejudiced chooses to defend or prosecute any third-party Claim, the Indemnified Party shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, third-party Claim that the Indemnifying Party may elect to retain counsel reasonably acceptable to recommend and that, by its terms, discharges the relevant Indemnified Parties to represent such Indemnified Parties Party and each of its Affiliates from the full amount of liability in connection with such Proceeding and third-party Claim; provided, however, that, the Indemnified Party shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited be required to agree to the posting entry of such bond any judgment or other security as may be required by enter into any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense of provides for injunctive or other non-monetary relief affecting the Indemnified Parties in connection with such Proceeding and Party or any of its Affiliates, or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then Claim by each claimant or plaintiff to the Indemnified Parties shall retain counsel reasonably acceptable to Party and each of its Affiliates that is the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party Claim.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Royal Standard Minerals Inc)
Notice of Claim; Defense. (a) For purposes of this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said An Indemnified Party shall promptly notify give the applicable Indemnifying Party prompt written notice of any Third-Party Claim that may give rise to any indemnification obligation under this Article X, and the Indemnifying Party in writing of such Proceeding stating with reasonable specificity shall have the circumstances of right to assume the Indemnified defense (at the Indemnifying Party’s expense) of any such claim for indemnification (a “Claim Notice”); provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights through counsel of the Indemnifying Party’s own choosing by so notifying such Indemnified Party are actually and materially prejudiced or to within 30 days of the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After first receipt by the Indemnifying Party of such notice, then upon reasonable written notice from such Indemnified Party. Failure to give such written notice shall affect the indemnification obligations only to the extent of actual prejudice. If, under applicable standards of professional conduct and in the good faith judgment of counsel to both the Indemnified Party and the Indemnifying Party, a conflict with respect to any significant issue between any Indemnified Party and the Indemnifying Party exists in respect of such Third-Party Claim, the Indemnifying Party shall pay the reasonable fees and expenses of such additional counsel as may be required to be retained in order to resolve such conflict. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party chooses to defend or upon prosecute any Third-Party Claim, the request Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that, by its terms, forever discharges and releases the Indemnified Party and its Affiliates from the full amount of liability in connection with such Third Party Claim; provided, however, that, without the consent of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counselnot consent to, and the Indemnified Party shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) provides for injunctive or other non-monetary relief affecting the Indemnifying Indemnified Party may elect to control the defense or any Affiliate of the Indemnified Parties in connection with such Proceeding and Party or (ii) does not include as an unconditional term thereof the Indemnified Parties giving of a release and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available discharge from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable claim by each claimant or plaintiff to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party that is the subject of such Third Party Claim. The Indemnified Party shall be reimbursed promptly by not agree to any settlement of, or entry of any judgment arising from, any Third-Party Claim without the prior written consent of the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed withheld or withheld)delayed.
Appears in 1 contract
Notice of Claim; Defense. (a) For purposes Each Purchaser Indemnified Person shall give Seller prompt notice of any third-party claim (other than claims arising out of any pending or threatened audit, notice of deficiency, proposed adjustment, assessment, examination or other administrative or court proceeding, suit, dispute or other claim which could affect the liability for Taxes of Seller) that may give rise to any indemnification obligation under this Article VIII, together with the estimated amount of such claim, if reasonably ascertainable, (provided that failure to deliver such notice shall not release Seller from any of its obligations hereunder except to the extent Seller is materially prejudiced by such failure), together with a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” description of the facts and the party against whom circumstances on which such claim is asserted is hereinafter referred based. Seller shall have the right to as assume the “Indemnifying Party.” All claims defense (at Seller's expense) of any such claim through counsel of Seller's own choosing by any so notifying such Purchaser Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with Person within 30 days of the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected receipt by Seller of such notice from such Purchaser Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)Person; provided, -------- however, that any failure such counsel shall be reasonably satisfactory to such ------- Purchaser Indemnified Person. Seller shall be liable for the fees and expenses of counsel employed by such Purchaser Indemnified Person for any period during which Seller has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give such notice will not waive any rights of the third-party claim as provided above). If Seller assumes such defense through counsel of its own choosing, such Purchaser Indemnified Party except Person shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by Seller, the rights retention and the provision to Seller of records and information reasonably relevant to such third-party claim, and making employees of the Indemnifying Party are actually Company reasonably available on a mutually convenient basis to provide additional information and materially prejudiced explanation of any materials provided hereunder. If Seller chooses to defend or prosecute any third-party claim, Purchaser shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party settlement, compromise or discharge of such noticethird-party claim that Seller may recommend and that by its terms, then upon reasonable notice discharges, Purchaser from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third party claim, so long as the only remedy provided in such settlement compromise or discharge is payment of monetary damages for which the Purchaser is indemnified by the Seller. None of Purchaser, any of its Affiliates or the Company may settle or otherwise dispose of any claim for which Seller may have a liability under this Agreement without the prior written consent of Seller, which consent will not be unreasonably withheld or delayed. Seller shall pay the feesnot be liable under this Section 8.2(a) for any settlement, charges and disbursements compromise or discharge effected without its consent in respect of such counsel, and any claim for which indemnity may be sought hereunder. No indemnified party shall take all actions necessary, including but not limited any action the purpose of which is to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control prejudice the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not any claim subject to retain counsel and assume control of such defense (indemnification hereunder or fails to give prompt notice of its intention induce a third party to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect assert a claim subject to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)indemnification hereunder.
Appears in 1 contract
Notice of Claim; Defense. (a) For purposes A DCC Indemnified Person or a Globe Indemnified Person that desires to seek indemnification under any part of this Article VIIIARTICLE IX (each, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and Person”) shall give to each party responsible or alleged to be responsible for indemnification hereunder (an “Indemnitor”) prompt notice of any Indemnified Person or Third Party claim that may give rise to any indemnification obligation under this ARTICLE IX, together with the party against whom estimated amount of such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof (if then estimable); provided that notice shall be asserted and resolved deemed to have been given in accordance with the following provisionsforegoing requirement on the date hereof without any further action by a DCC Indemnified Person or Globe Indemnified Person (as applicable) with respect to the matters set forth on Section 9.3(a) of the Disclosure Letter; provided further the foregoing shall not be deemed a waiver by Globe of any of its rights under this Agreement. If any claimFailure to give such notice (including, demandfor the sake of clarity, investigationby failing to list such item on Schedule 9.3(a) of the Disclosure Letter) shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice and in such case, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable only to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing extent of such Proceeding stating with reasonable specificity prejudice. To the circumstances extent that any item listed on Schedule 9.3(a) of the Disclosure Letter has not yet resulted in a formal claim or complaint by a Governmental Authority or Third Party complaint, after the date hereof, the DCC Indemnified Party’s Persons shall use their reasonable best efforts to promptly provide notification of such formal claim for indemnification (a “Claim Notice”)or complaint received by such party; provided, however, provided that any failure to give provide such notice will notification shall not waive affect any rights indemnification obligations hereunder in the absence of the Indemnified Party except actual and material prejudice and in such case, only to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense of the Indemnified Parties in connection with such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)prejudice.
Appears in 1 contract
Notice of Claim; Defense. (a) For purposes Purchaser shall give the Shareholder Indemnifying Person prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” together with the estimated amount of such claim, and the party against whom Shareholder Indemnifying Person shall have the right to assume the defense (at the Shareholder Indemnifying Person's expense) of any such claim is asserted is hereinafter referred to as through counsel of the “Shareholder Indemnifying Party.” All claims Person's own choosing by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with so notifying Purchaser within 30 days of the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an first receipt by the Shareholder Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Person of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice shall not affect the indemnification obligations hereunder in the absence of actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchaser Indemnified Person and the Shareholder Indemnifying Person exists in respect of such third-party claim, the Shareholder Indemnifying Person shall pay the reasonable fees and expenses of such additional counsel as maybe required to be retained in order to resolve such conflict. The Shareholder Indemnifying Person shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which the Shareholder Indemnifying Person has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will not waive any rights have failed to give notice of the Indemnified Party except third-party claim as provided above). If the Shareholder Indemnifying Person assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Shareholder Indemnifying Person, it being understood that the Shareholder Indemnifying Person shall control such defense. If the Shareholder Indemnifying Person chooses to defend or prosecute a third-party claim, Purchaser shall cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the rights of Shareholder Indemnifying Person, the Indemnifying Party are actually retention, and materially prejudiced or the provision to the extent that Shareholder Indemnifying Person, of records and information reasonably relevant to such third-party claim, and making employees of Purchaser and the Company available on a mutually convenient basis to provide additional information and explanation of any applicable period set forth in Section 8.2(a) has expired without such notice being givenmaterials provided hereunder. After receipt by If the Shareholder Indemnifying Party Person chooses to defend or prosecute any third-party claim, Purchaser shall agree to any settlement, compromise or discharge of such noticethird-party claim that the Shareholder Indemnifying Person may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Affiliates from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, without the consent of Purchaser, the Shareholder Indemnifying Person shall pay the fees, charges and disbursements of such counselnot consent to, and Purchaser shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchaser Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
Appears in 1 contract
Samples: Stock Purchase Agreement (American United Global Inc)
Notice of Claim; Defense. Purchaser shall give Seller prompt (aand in any event within 183 days after the Closing Date for a claim made pursuant to Section 8.1(a) For purposes above) notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred together with the estimated amount of such claim, and Seller shall, with the approval of Purchaser which shall not be unreasonably withheld, have the right to as an “Indemnified Party” and assume the party against whom defense at Seller’s expense of any such claim is asserted is hereinafter referred to as through counsel of Seller’ own choosing by so notifying Purchaser within 30 days of the “Indemnifying Party.” All claims first receipt by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing Seller of such Proceeding stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)notice from Purchaser; provided, however, that any failure such counsel shall be reasonably satisfactory to Purchaser. Failure to give such notice will shall not waive any rights of affect the Indemnified Party except indemnification obligations hereunder in the absence of, and then only to the extent of, actual and material prejudice. If, under applicable standards of professional conduct, a conflict with respect to any significant issue between any Purchaser Indemnified Person and Seller exists in respect of such third-party claim, Seller shall pay the rights reasonable fees and expenses of such additional counsel as may be required to be retained in order to eliminate such conflict. Seller shall be liable for the fees and expenses of counsel employed by Purchaser for any period during which Seller has not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give notice of the Indemnifying Party are actually third-party claim as provided above). If Seller assumes such defense, Purchaser shall have the right to participate in the defense thereof and materially prejudiced to employ counsel, at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend or prosecute any third-party claim, Purchaser shall agree to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party reasonable settlement, compromise or discharge of such noticethird-party claim that Seller may recommend and that, then upon reasonable notice by its terms, discharges Purchaser and the Purchaser Indemnified Persons from the Indemnifying Party to the Indemnified Party, or upon the request full amount of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties liability in connection with such Proceeding and third-party claim; provided, however, that, Seller shall pay the fees, charges and disbursements of such counselnot consent to, and Purchaser shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by to agree to, the entry of any Governmental Authority, so as to enable the Proceeding to be defended against judgment or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in enter into any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each claimant or plaintiff to each Purchaser Indemnified Party shall be reimbursed promptly by Person that is the Indemnifying Party. No compromise or settlement subject of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)third-party claim.
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Samples: Asset Purchase Agreement (Spatializer Audio Laboratories Inc)
Notice of Claim; Defense. (a) For purposes Purchaser shall give Seller prompt notice of any third-party claim that may give rise to any indemnification obligation under this Article VIIIVI, together with the estimated amount of such claim. The Seller shall have the right to assume the defense (at Seller's expense) of any such claim through counsel approved in writing by the Purchaser. The Seller shall be liable for any reasonable fees and expenses of counsel employed by Purchaser for any period during which Seller have not assumed the defense of any such third-party claim (other than during any period in which Purchaser will have failed to give notice of the third-party claim as provided above). If Seller assumes such defense, Purchaser shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller, it being understood that Seller shall control such defense. If Seller chooses to defend or prosecute a third-party making a claim for indemnity under Section 8.1(a) claim, Purchaser shall cooperate in the defense or 8.1(b) is hereinafter referred prosecution thereof, which cooperation shall include, to as an “Indemnified Party” the extent reasonably requested by Seller, the retention, and the provision to Seller, of records and information reasonably relevant to such third-party against whom such claim is asserted is hereinafter referred claim, and making employees of the Company available on a mutually convenient basis to as the “Indemnifying Party.” All claims by provide additional information and explanation of any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisionsmaterials provided hereunder. If Seller chooses to defend or prosecute any third-party claim, demandPurchaser shall agree to any settlement, investigation, action compromise or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to an Indemnified Party is asserted against or sought to be collected from such Indemnified Party, said Indemnified Party shall promptly notify the Indemnifying Party in writing discharge of such Proceeding stating third-party claim that Seller may recommend and that, by its terms, discharges Purchaser and the Purchaser's Affiliates from the full amount of liability in connection with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification (a “Claim Notice”)such third-party claim; provided, however, that any failure that, without the consent of Purchaser, Seller shall not consent to, and Purchaser shall not be required to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Partyagree to, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements entry of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond any judgment or other security as may be required by enter into any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided settlement that (i) the Indemnifying Party may elect to control the defense provides for injunctive or other non-monetary relief affecting Purchaser or any Affiliate of the Indemnified Parties in connection with such Proceeding and Purchaser, or (ii) does not include as an unconditional term thereof the Indemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control giving of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available a release from all liability with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm shall be deemed reasonably acceptable) in connection with such Proceeding and assume control of the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected claim by each Indemnified Party shall be reimbursed promptly by the Indemnifying Party. No compromise claimant or settlement of such claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless: (A) there is no finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required plaintiff to be paid by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Purchaser.
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Notice of Claim; Defense. (a) For purposes of this Article VIII, a If (i) any third-party making a claim for indemnity under Section 8.1(a) institutes or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance with the following provisions. If asserts any claim, demand, investigation, audit in respect of any Tax liability, action or proceeding (each of the foregoing, a “Proceeding”) that may give rise to Losses for which a party (an “Indemnifying Party”) may be liable for indemnification under this Article VIII (a “Third-party Claim”) or (ii) any Person entitled to indemnification under this Agreement (an “Indemnified Party”) shall have a claim to be indemnified by an Indemnifying Party would be liable to an Indemnified Party is asserted against that does not involve a Third-party Claim (a “Direct Claim”), then, in case of clause (i) or sought to be collected from such Indemnified Party(ii), said the Indemnified Party shall promptly notify send to the Indemnifying Party in writing a written notice specifying the nature of such Proceeding stating with reasonable specificity claim and the circumstances amount of the Indemnified Party’s claim for indemnification all related Liabilities (a “Claim Notice”); provided, however, provided that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually and materially prejudiced or shall be relieved of its indemnification obligations under this Article VIII only to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt it is prejudiced by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding, provided that (i) the Indemnifying Party may elect to control the defense failure of the Indemnified Parties in connection with such Proceeding to provide a timely and adequate Claim Notice. With respect to liquidated Losses finally determined to be due and payable, if within thirty (ii30) the Indemnified Parties and their counsel shall reasonably cooperate with days the Indemnifying Party and its counsel has not contested the Claim Notice in connection with such Proceeding. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding), or different defenses are available with respect to such Proceedingwriting, then the Indemnified Parties shall retain counsel reasonably acceptable to Party will pay the full amount of such liquidated Losses within ten (10) days after the expiration of such thirty-day period. Any liquidated amount owed by an Indemnifying Party (it being understood that counsel from hereunder with respect to any nationally recognized law firm shall Losses may be deemed reasonably acceptable) in connection with such Proceeding and assume control of set-off by the defense in connection with such Proceeding, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly against any amounts owed by the Indemnified Party to the Indemnifying Party. No compromise or settlement of such claims may Any amount finally determined to be effected due and owed by Seller to Purchaser pursuant to this Article VIII may, at the Indemnifying Party without Purchaser’s option, be satisfied from the Indemnified Party’s prior written consent unless: (A) there is no finding or admission Escrowed Amount pursuant to the Escrow Agreement. The unpaid balance of any violation of any Legal Requirement; Losses shall bear interest at a rate per annum equal to the rate announced by Citibank, N.A. from time to time as its “Base Rate” plus two percent (B2%) from the sole relief provided date notice thereof is monetary damages, none of which are required to be paid given by the Indemnified Party; and (C) such compromise of settlement contains a full and unconditional release of the Indemnified Party. Under no circumstances will Party to the Indemnifying Party have any liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which consent shall not be unreasonably delayed or withheld)Party.
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Notice of Claim; Defense. (a) For purposes An Indemnified Party shall give the Indemnifying Party prompt written notice of any third-party claim that may give rise to any indemnification obligation under this Article VIII, a party making a claim for indemnity under Section 8.1(a) or 8.1(b) is hereinafter referred to as an “Indemnified Party” and the party against whom such claim is asserted is hereinafter referred to as the “Indemnifying Party.” All claims by any Indemnified Party under Section 8.1(a) or 8.1(b) hereof shall be asserted and resolved in accordance together with the following provisionsestimated amount of such claim. If any claim, demand, investigation, action or proceeding (a “Proceeding”) for which an Indemnifying Party would be liable to In the event that an Indemnified Party is asserted against or sought asserts any right to be collected from such Indemnified Partyindemnification hereunder, said Indemnified Party shall promptly notify the Indemnifying Party in writing shall have the right to assume the defense (at the Indemnifying Party’s expense) of any such Proceeding stating with reasonable specificity the circumstances claim through counsel of the Indemnified Indemnifying Party’s claim for indemnification (a “Claim Notice”); provided, however, that any failure to give such notice will not waive any rights of own choosing by so notifying the Indemnified Party except to the extent the rights within thirty (30) days of the Indemnifying Party are actually and materially prejudiced or to the extent that any applicable period set forth in Section 8.2(a) has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or upon the request of the Indemnified Party. In addition, the Indemnifying Party may elect to retain counsel reasonably acceptable to the relevant Indemnified Parties to represent such Indemnified Parties in connection with such Proceeding shall be liable (and shall pay reimburse the fees, charges Indemnified Party) for the fees and disbursements expenses of such counsel, and shall take all actions necessary, including but not limited to the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the Proceeding to be defended against or resolved without expense or other action counsel employed by the Indemnified Party. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in Party for any such Proceeding, provided that (i) period during which the Indemnifying Party may elect to control has not assumed the defense of the Indemnified Parties in connection with 76 thereof after having received such Proceeding and (ii) the Indemnified Parties and their counsel shall reasonably cooperate with notice. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel in connection with such Proceeding. Notwithstanding the foregoing, if employed by the Indemnifying Party elects not to retain counsel and assume control of such defense (or fails to give prompt notice of its intention to do so) or if conflicts of interests exist or arise between the Indemnifying Party and such Indemnified Party (other than with respect to the Proceeding)Party, or different defenses are available with respect to such Proceeding, then the Indemnified Parties shall retain counsel reasonably acceptable to the Indemnifying Party (it being understood that counsel from any nationally recognized law firm the Indemnifying Party shall be deemed reasonably acceptable) in connection with control such Proceeding and assume control of defense. If the defense in connection with such ProceedingIndemnifying Party chooses to defend or prosecute a third-party claim, and the reasonable fees, charges and disbursements of counsel selected by each Indemnified Party shall be reimbursed promptly cooperate in the defense or prosecution thereof, which cooperation shall include, to the extent reasonably requested by the Indemnifying Party, the retention, and the provision to the Indemnifying Party, of records and information reasonably relevant to such third-party claim, and making employees of the Companies and the Subsidiaries available on a mutually convenient basis to provide additional information and explanation of, or to testify about, any materials provided hereunder. No compromise or settlement of such claims may be effected by If the Indemnifying Party chooses to defend or prosecute any third-party claim, the Indemnifying Party shall not consent or agree to any settlement, compromise or discharge of such third-party claim without the consent of an Indemnified Party’s prior written Party (which consent unless: shall not be unreasonably withheld, conditioned or delayed) (A) there is no if such judgment or settlement does not include as an unconditional term thereof the giving by each claimant or plaintiff to the Indemnified Party of a release from all liability in respect to such claim, (B) if such judgment or settlement would result in the finding or admission of any violation of any Legal Requirement; (B) the sole relief provided is monetary damages, none of which are required to be paid applicable Law by the Indemnified Party; and , or (C) if, as a result of such compromise of settlement contains a full and unconditional release of consent or settlement, injunctive or other equitable relief would be imposed against the Indemnified PartyParty or such judgment or settlement would materially adversely affect the Business or bind Purchaser or its Affiliates, in the case of Purchaser or its Affiliates, and the Retained Business, in the case of Seller or its Affiliates. Under no circumstances will If the Indemnified Party defends or prosecutes any third-party claim, the Indemnified Party shall not consent or agree to any settlement, compromise or discharge of such third-party claim without the consent of the Indemnifying Party have (which consent shall not be unreasonably withheld, conditioned or delayed). In addition, the Indemnifying Party shall not be liable under this Section 8.3 for any liability in connection with any settlement of any Proceeding that is entered into settlement, compromise or discharge effected without its prior written consent (which consent shall not be unreasonably delayed withheld, conditioned or withheld)delayed) in respect of any claim for which indemnity may be sought hereunder. No indemnified party shall take any action the purpose of which is to prejudice the defense of any claim subject to indemnification hereunder or to induce a third party to assert a claim subject to indemnification hereunder.
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