Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure. (b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party). (c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld). (d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (Alanco Technologies Inc), Asset Purchase Agreement (ORBCOMM Inc.)
Procedures for Indemnification. (a) An Indemnitee shall give written notice of any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement or any Ancillary Agreement (other than a Third-Party Claim which shall be governed by Section 9.4(b)) to any Party that is or may be required pursuant to this Agreement or any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) promptly (and in any event within fifteen (15) days) after making such a determination. Such notice shall state the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement or the applicable Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party Party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it gives written notice of its intention to do so (including a Third statement that the Indemnitee is entitled to indemnification under this Article IX) to the applicable Indemnitees within thirty (30) days of the receipt of notice from such Indemnitees of the Third-Party Claim is made against an Indemnitee and (failure of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, respond within such thirty (30) day period shall be deemed to be an election by the Indemnifying Party will be entitled not to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the for such Third-Party Claim). After a notice from an Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the good faith judgment of the Indemnitee, result in the loss of any existing privilege with respect to such information or violate any applicable Law or to take any actions that would unreasonably interfere with the operation of the Indemnitee’s business.
(d) Notwithstanding anything to the contrary in this Section 9.4, in the event that (i) an Indemnifying Party will elects not to assume the defense of a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the Indemnitee, (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder, or (v) the Person making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee shall be liable for entitled to control the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing (such counsel to be reasonably acceptable to the Indemnifying Party). If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the good faith judgment of the Indemnifying Party, result in the loss of any existing privilege with respect to such information or violate any applicable Law or to take any actions that would unreasonably interfere with the operation of the Indemnitee’s business.
(e) Unless the Indemnifying Party has failed to assume the defense thereof of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If an Indemnifying Party has failed to diligently conduct assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not to be unreasonably withheld), conditioned or delayed) of the Indemnitee if the effect thereof is to permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release the Indemnitee from all liabilities and obligations with respect to such Third-Party Claim or includes an admission of guilt or liability on behalf of the Indemnitee.
(dg) Any claim on account Absent fraud or intentional misconduct by an Indemnifying Party, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement or any Ancillary Agreement, and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 3 contracts
Sources: Master Separation Agreement (Pennant Group, Inc.), Separation Agreement (Ensign Group, Inc), Master Separation Agreement (Pennant Group, Inc.)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 6.2 or demand Section 6.3 (an “Indemnified Party”) shall notify the Party against whom indemnification is made against sought (an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement of the claim in writing (such written notice, an “Indemnification Notice”) promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party by a third Party (a "“Third Party Claim"”). Each such Indemnification Notice shall describe in reasonable detail the applicable Third Party Claim, including the facts giving rise to such Indemnitee will notify claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known) and such other information with respect thereto as the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim may reasonably promptly after becoming aware of such Third Party Claimrequest; provided, howeverthat, that the failure to give any such notification will so notify an Indemnifying Party shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party shall have demonstrated that it has been actually is materially prejudiced as a result of by such failure.
(b) If a Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will option shall be entitled to assume the defense thereof (at by appointing a reputable counsel to be the expense of lead counsel in connection with such defense; provided, that, the Indemnifying Party) with counsel selected by the Indemnifying Indemnified Party and reasonably satisfactory shall be entitled to the Indemnitee. Should the Indemnifying Party so elect to assume participate in the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ counsel of its choice for such purpose (provided, that, the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE VI). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate, then the Indemnified Party may, upon notice to represent such Indemnitee the Indemnifying Party, engage separate counsel, and in that event the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder. For the avoidance of doubt, the fees and expenses of counsel to the Indemnified Party shall be considered a Loss for all purposes of this ARTICLE VI, and shall be subject to the and part of the limitations on indemnification contained in this ARTICLE VI (including Section 6.4).
(c) Unless the Indemnifying Party refuses in writing (and based on an accurate and complete Indemnification Notice) to assume the defense of any Third Party Claim, the Indemnified Party will not pay, or permit to be paid paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment and any such payment made in violation of this provision shall be deemed for all purposes of this Agreement not to be a Loss. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief consists solely of (i) money damages (more than 50% of which the Indemnifying Party shall be obligated to pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect to the matter being settled; provided, however, that if the Indemnified Party fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by such Indemnifying Partymaking employees, information and documentation reasonably available. If the Indemnifying Party assumes shall not reasonably promptly assume the defense of any such Third Party Claim, each Indemnitee will have the right or fails to participate in the defense thereof and to employ counsel, at its own expense, separate prosecute or withdraws from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply to may defend against such matter in a manner consistent with the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request above provisions regarding conduct of the Indemnifying Party all defense by the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Indemnified Party).
(ce) Notwithstanding anything to the contrary contained herein, no Any Indemnified Party making a claim against any Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) hereunder that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written deliver notice given by the Indemnitee of such claim promptly to the Indemnifying Party from whom Party, describing in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such indemnification is sought. The failure by any Indemnitee so to notify claim (if known) and such other information with respect thereto as the Indemnifying Party will may reasonably request; provided, that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party shall have demonstrated that it has been actually is materially prejudiced as a result of by such failure.
Appears in 3 contracts
Sources: Assignment of Lease and Festival Rights Agreement, Assignment of Lease and Festival Rights (Origo Acquisition Corp), Assignment of Lease and Festival Rights (Hightimes Holding Corp.)
Procedures for Indemnification. (a) If a claim A Party seeking indemnification pursuant to Section 7.2 or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party Section 7.3 (the "Indemnifying “Indemnified Party"”) may be obligated shall provide prompt written notice to the Party required to provide indemnification pursuant to this Agreement under Section 7.2 or Section 7.3 (the “Indemnifying Party”) of any event, claim or proceeding carried out by a "third party (“Third Party Claim")”) for which the Indemnified Party is entitled to indemnification under this Article VII. The Indemnifying Party will have the right to direct, through counsel of its choice, the defense or settlement of any Third Party Claim at its own expense. The Indemnified Party may participate in such Indemnitee defense at its own expense. The Indemnified Party will notify promptly provide the Indemnifying Party with reasonable access to the Indemnified Party’s records and personnel relating to any Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in writing, and in reasonable detail, the defense or settlement of the Third Party Claim reasonably promptly after becoming aware of such a Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the . The Indemnifying Party shall have demonstrated that it has been actually prejudiced as will reimburse the Indemnified Party for all of its reasonable out of pocket costs related to a result of such failureThird Party Claim.
(b) The Indemnified Party will not pay, or permit to be paid, any part of any Loss arising from a Third Party Claim, unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld or delayed) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Loss. No Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed, unless the judgment or proposed settlement involves only the payment of money damages and does not seek to impose equitable relief.
(c) If the Indemnifying Party fails to defend a Third Party Claim is made against an Indemnitee and or withdraws from defending such a claim, then the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Indemnified Party will be entitled have the right to assume undertake the defense thereof (at the expense or settlement of the Indemnifying Party) with counsel selected by applicable Third Party Claim and seek reimbursement under this Agreement. If the Indemnifying Indemnified Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume assumes the defense of a Third Party ClaimClaim pursuant to this Section 8.4 and proposes to settle such claim prior to a final judgment or to not pursue an appeal, then the Indemnified Party will give the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as prompt written notice and the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to settlement or assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes reassume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees sole cost and expenses, expense of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Nobilis Health Corp.), Asset Purchase Agreement (Nobilis Health Corp.), Asset Purchase Agreement (Nobilis Health Corp.)
Procedures for Indemnification. (a) Other than with respect to Third Party Claims, which shall be governed by Section 6.4(b):
(i) if a Mural Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any Mural Claim, the Mural Indemnitee shall so notify Alkermes as promptly as reasonably practicable after becoming aware of the existence of such Mural Claim; and
(ii) if an Alkermes Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any Alkermes Claim, the Alkermes Indemnitee shall so notify Mural as promptly as reasonably practicable after becoming aware of the existence of such Alkermes Claim (any such claim made pursuant to Section 6.4(a)(i) or this Section 6.4(a)(ii), a “Direct Claim”). Each such notice shall be in writing and shall describe in reasonable detail the basis for the claim for indemnification hereunder and set forth, to the extent known, the estimated amount of Indemnifiable Losses for which indemnification may be sought hereunder relating to such claim (including, to the extent practicable, the method of computation thereof); provided, however, that the failure to provide such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. The Indemnifying Party will have a period of thirty (30) days after receipt of any such notice under this Section 6.4(a) to respond to the claimant thereto. If the Indemnifying Party fails to respond within such period, the claim specified in such notice from the Indemnitee shall be conclusively determined to be an indemnifiable claim for which the Indemnifying Party shall be liable to the applicable Indemnitee(s) hereunder.
(b) If a claim or demand is made against an Indemnitee by any Person who is not Third Party (a party to this Agreement (and who is not an Affiliate of a party to this Agreement“Third Party Claim”) as to which a party (the "Indemnifying Party") such Indemnitee is or may be obligated entitled to provide indemnification pursuant to this Agreement Agreement, Alkermes (a "Third Party Claim"on behalf of the Alkermes Indemnitees) or Mural (on behalf of the Mural Indemnitees), as applicable (such Indemnitee will claimant, the “Claiming Party”), shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably in writing and in reasonable detail describing the basis for any claim for indemnification hereunder, referring to the provisions of this Agreement or any Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises and including copies of all Third Party written notices and documents received by the Claiming Party (and any or all of its Indemnitees) relating to the Third Party Claim promptly (and in any event within twenty (20) days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that the failure to give provide notice of any such notification will Third Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failure. Thereafter, the Claiming Party shall deliver to the Indemnifying Party, promptly (and in any event within five (5) Business Days) after the receipt thereof by the Claiming Party (or any of its Indemnitees), copies of any and all additional Third Party written notices and documents (including court papers) received by the Claiming Party (or any of its Indemnitees) relating to the Third Party Claim.
(bc) If a Third Party Claim is made against an Indemnitee and Subject to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforprovisions of this Section 6.4(c), the Indemnifying Party will be entitled has the right, exercisable by written notice to the Claiming Party within thirty (30) days after receipt of notice from the Claiming Party pursuant to Section 6.4(b), to assume and conduct the defense thereof (at including, subject to the expense conditions of this Section 6.4(c), settlement) of such Third Party Claim in accordance with the Indemnifying Party) limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees. Should If the Indemnifying Party so elect to does not assume the defense of a Third Party Claim in accordance with this Section 6.4(c), the Indemnitee may defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as provided in this Section 6.4(c), the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as of the Third Party Claim; provided, however, that if (w) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third Party Claim by the Indemnifying Party, (x) the party making such Third Party Claim is a Governmental Entity with regulatory or other authority over the Indemnitee or any of its material assets, (y) the Third Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business or (z) the Indemnifying Party fails to take reasonable steps necessary to defend diligently conducts such Third Party Claim, the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs or expenses paid or incurred in connection with such defense; provided that, if that the Indemnifying Party shall not be responsible for the expenses of more than one counsel for all Indemnitees with respect to the same Third Party Claim or related Third Party Claims (i) plus one local counsel in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend jurisdiction within which such Third Party Claim has been brought). The Indemnifying Party or the Indemnitee, as the case may be, has the right to participate in (but, subject to the prior sentence, not control), at its own expense, the defense of any Third Party Claim that the other Person is defending as provided in this Agreement. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided in this Agreement, may not, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed), consent to a settlement or compromise of, or the entry of any judgment arising from, any such Third Party Claim. The Indemnitee may consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, the defense of which has not been assumed by the Indemnifying Party, only with the prior written consent of the Indemnifying Party, not to be unreasonably withheld, conditioned or delayed.
(d) The Claiming Party and provide indemnification the Indemnifying Party shall (and the Claiming Party shall cause the applicable Indemnitee(s) to) make reasonably available to each other and their respective agents and representatives all relevant records available to them that are necessary or appropriate for the defense of any Third Party Claim, subject to any bona fide claims of attorney-client privilege, and each of the Indemnifying Party and the Claiming Party shall use its reasonable efforts to assist, and to cause the employees and counsel of such party to assist, in the defense of such Third Party Claim. If a Party asserts its right to participate in the defense and investigation of any Third Party Claim, the Party controlling the defense and investigation of such Third Party Claim shall act in good faith and reasonably consult and cooperate with the Indemnitee or the Indemnifying Party, as the case may be, in connection with any appearances, briefs, arguments and proposals made or submitted by or on behalf of any party in connection with the Third Party Claim (including considering in good faith all reasonable additions, deletions or changes suggested by the Indemnitee or the Indemnifying Party, as the case may be, in connection with any filings made with any Governmental Entity or proposals to the Third Party claimant in connection therewith). With respect to any Third Party Claim that implicates both Parties in any material respect due to the allocation of Liabilities, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use commercially reasonable efforts to cooperate fully and maintain a joint defense (in a manner that, to the extent reasonably practicable, will preserve for all Parties any Privilege with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in ). The Party that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes is not responsible for managing the defense of any such Third Party ClaimClaim shall, each Indemnitee will have the right upon reasonable request, be consulted with respect to participate significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense thereof and of such claims. Notwithstanding the foregoing, nothing in this Section 6.4(d) shall derogate from a Party’s right to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes control the defense of any such Third Party ClaimAction in accordance with Section 6.4.
(e) Each of the Parties agrees that at all times from and after the Distribution Effective Time, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party if an Action is entitled to and chooses to defend commenced by a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof naming two (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
2) or more Parties (c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any member of its Affiliates such Parties’ respective Groups) as defendants and with respect to which one or more named Parties (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any member of its Affiliates. If each Indemnifying such Party’s Group) is a nominal defendant and/or such Action is related solely to an Asset or Liability that the other Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee has been assigned under this Agreement, except any Ancillary Agreement or any Third Party Agreement, then the other Party or Parties shall use commercially reasonable efforts to cause such nominal defendant to be removed from such Action, as soon as reasonably practicable.
(f) The provisions of this Section 6.4 (other than this Section 6.4(f)) and Section 6.7 (other than Section 6.7(g)) shall not apply to Taxes (Taxes being governed by the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureTax Matters Agreement).
Appears in 3 contracts
Sources: Separation Agreement (Alkermes Plc.), Separation Agreement (Mural Oncology PLC), Separation Agreement (Mural Oncology PLC)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a An indemnified party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will hereunder shall notify the Indemnifying Party indemnifying party, in writing, and of any claim for indemnification, specifying in reasonable detail, detail the nature of the Third Party Claim reasonably promptly after becoming aware Claims and Losses and, if known, the amount or an estimate of such Third Party Claimthe amount of the Claims and Losses. In the event of a claim by any third party, or if there is any claim against a third party available by virtue of the circumstances of the Claims and Losses, the indemnifying party may assume the defense or the prosecution thereof by prompt written notice to indemnified party including the employment of counsel or accountants, at its cost and expense; provided, however, that failure to give if the defendants in any such notification will not affect action include both the indemnification provided hereunder except to indemnifying party and the extent the Indemnifying Party indemnified party and such parties shall have demonstrated reasonable concluded that it has been actually prejudiced as there may be a result conflict between the positions of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges parties in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume conducting the defense of a Third Party Claimany such action, the Indemnifying Party will not be liable indemnified party shall have the right to select separate legal counsel to assume such defense and otherwise participate in such action at the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will indemnifying party’s expense. The indemnified party shall have the right to employ counsel separate from counsel employed by the indemnifying party in any such action and to represent such Indemnitee and in that event participate therein, but the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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 Partyindemnified party shall be at its expense. The Indemnifying Party will indemnifying party shall not be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense settlement of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence Claims and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, Losses effected without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's its prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which ; provided that if the indemnifying party does not involve assume the defense or prosecution of a Third Party Claim shall be asserted by written third-party claim as provided above within thirty (30) days after notice given by thereof from the Indemnitee to indemnified party, the Indemnifying Party from whom indemnified party may settle such indemnification is soughtclaim without the indemnifying party’s consent. The failure by indemnifying party shall not agree to a settlement of any Indemnitee Claims and Losses which provides for any relief other than the payment of monetary damages or which could have a material precedential impact or effect on the business or financial condition of the indemnified party without the indemnified party’s prior written consent. Whether or not the indemnifying party chooses to so to notify defend or prosecute such claim, both parties shall cooperate in the Indemnifying Party will not relieve the Indemnifying Party from any liability which it defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals, as may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurebe reasonably requested in connection therewith.
Appears in 3 contracts
Sources: Common Stock Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc), Common Stock and Warrant Purchase Agreement (Corautus Genetics Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying “Claiming Party"”) may be obligated to provide indemnification pursuant to this Agreement becomes aware of any claim or potential claim by a third party (a "“Third Party Claim"”), such Indemnitee will notify or of any other matter or circumstance, which may result in a claim being made against it and for which it would be indemnified under this Agreement by the other party (the “Indemnifying Party”), the Claiming Party in writingshall:
(a) promptly, and in reasonable detailany event within [***] of it becoming aware of it, give notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated and ensure that it has been actually prejudiced as a result of such failure.the Indemnifying Party is given all reasonable information and facilities to investigate it;
(b) If a not (and ensure that its Affiliates do not) admit liability or make any agreement or compromise in relation to the Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense without prior written approval of the Indemnifying Party;
(c) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in the defense thereof of the Third Party Claim and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying , or
(d) subject to the Claiming Party will be liable for the fees and expenses of counsel employed being indemnified by the Indemnitee for any period during which the Indemnifying Party has failed to assume against all reasonable out of pockets costs and expenses incurred in respect of that Third Party Claim upon the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure admission of the Indemnifying Party to acknowledge that such FLEXTRONICS CONFIDENTIAL claim is its indemnification obligation as aforesaid). If responsibility, or upon the determination by a judge or arbiter that the Indemnifying Party assumes was responsible for the defense of any such that Third Party Claim, ensure that the Claiming Party and each of its Affiliates shall:
(i) take such action as the Indemnifying Party will promptly supply may reasonably request to avoid, resist, dispute, appeal, compromise or defend the Indemnitee copies Third Party Claim;
(ii) allow the Indemnifying Party (if it elects to do so) to take over conduct of all correspondence and documents relating to or proceedings and/or negotiations arising in connection with such Third Party Claim the preparation for and keep the Indemnitee fully informed conduct of all developments any proceedings and/ or negotiations relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 3 contracts
Sources: Manufacturing Agreement (LumiraDx LTD), Manufacturing Agreement (LumiraDx LTD), Manufacturing Agreement (LumiraDx LTD)
Procedures for Indemnification. (a) Other than with respect to Third Party Claims, which shall be governed by Section 6.4(b):
(i) if a 2seventy Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any 2seventy Claim, the 2seventy Indemnitee shall so notify bluebird as promptly as reasonably practicable after becoming aware of the existence of such 2seventy Claim; and
(ii) if a bluebird Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any bluebird Claim, the bluebird Indemnitee shall so notify 2seventy as promptly as reasonably practicable after becoming aware of the existence of such bluebird Claim (any such claim made pursuant to Section 6.4(a)(i) or this Section 6.4(a)(ii), a “Direct Claim”). Each such notice shall be in writing and shall describe in reasonable detail the basis for the claim for indemnification hereunder and set forth, to the extent known, the estimated amount of Indemnifiable Losses for which indemnification may be sought hereunder relating to such claim (including, to the extent practicable, the method of computation thereof); provided, however, that the failure to provide such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. The Indemnifying Party will have a period of thirty (30) days after receipt of any such notice under this Section 6.4(a) to respond to the claimant thereto. If the Indemnifying Party fails to respond within such period, the claim specified in such notice from the Indemnitee shall be conclusively determined to be an indemnifiable claim for which the Indemnifying Party shall be liable to the applicable Indemnitee(s) hereunder.
(b) If a claim or demand is made against an Indemnitee by any Person who is not Third Party (a party to this Agreement (and who is not an Affiliate of a party to this Agreement“Third Party Claim”) as to which a party (the "Indemnifying Party") such Indemnitee is or may be obligated entitled to provide indemnification pursuant to this Agreement Agreement, bluebird (a "Third Party Claim"on behalf of the bluebird Indemnitees) or 2seventy (on behalf of the 2seventy Indemnitees), as applicable (such Indemnitee will claimant, the “Claiming Party”), shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably in writing and in reasonable detail describing the basis for any claim for indemnification hereunder, referring to the provisions of this Agreement or any Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises and including copies of all Third Party written notices and documents received by the Claiming Party (and any or all of its Indemnitees) relating to the Third Party Claim promptly (and in any event within twenty (20) days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that the failure to give provide notice of any such notification will Third Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failure. Thereafter, the Claiming Party shall deliver to the Indemnifying Party, promptly (and in any event within five (5) Business Days) after the receipt thereof by the Claiming Party (or any of its Indemnitees), copies of any and all additional Third Party written notices and documents (including court papers) received by the Claiming Party (or any of its Indemnitees) relating to the Third Party Claim.
(bc) If a Third Party Claim is made against an Indemnitee and Subject to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforprovisions of this Section 6.4(c), the Indemnifying Party will be entitled has the right, exercisable by written notice to the Claiming Party within thirty (30) days after receipt of notice from the Claiming Party pursuant to Section 6.4(b), to assume and conduct the defense thereof (at including, subject to the expense conditions of this Section 6.4(c), settlement) of such Third Party Claim in accordance with the Indemnifying Party) limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees. Should If the Indemnifying Party so elect to does not assume the defense of a Third Party Claim in accordance with this Section 6.4(c), the Indemnitee may defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as provided in this Section 6.4(c), the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as of the Third Party Claim; provided, however, that if (w) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third Party Claim by the Indemnifying Party, (x) the party making such Third Party Claim is a Governmental Entity with regulatory or other authority over the Indemnitee or any of its material assets, (y) the Third Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business or (z) the Indemnifying Party fails to take reasonable steps necessary to defend diligently conducts such Third Party Claim, the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs or expenses paid or incurred in connection with such defense; provided that, if that the Indemnifying Party shall not be responsible for the expenses of more than one counsel for all Indemnitees with respect to the same Third Party Claim or related Third Party Claims (i) plus one local counsel in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend jurisdiction within which such Third Party Claim has been brought). The Indemnifying Party or the Indemnitee, as the case may be, has the right to participate in (but, subject to the prior sentence, not control), at its own expense, the defense of any Third Party Claim that the other Person is defending as provided in this Agreement. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided in this Agreement, may not, without the prior written consent of the Indemnitee (not to be unreasonably withheld, conditioned or delayed), consent to a settlement or compromise of, or the entry of any judgment arising from, any such Third Party Claim. The Indemnitee may consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, the defense of which has not been assumed by the Indemnifying Party, only with the prior written consent of the Indemnifying Party, not to be unreasonably withheld, conditioned or delayed.
(d) The Claiming Party and provide indemnification the Indemnifying Party shall (and the Claiming Party shall cause the applicable Indemnitee(s) to) make reasonably available to each other and their respective agents and representatives all relevant records available to them that are necessary or appropriate for the defense of any Third Party Claim, subject to any bona fide claims of attorney-client privilege, and each of the Indemnifying Party and the Claiming Party shall use its reasonable efforts to assist, and to cause the employees and counsel of such party to assist, in the defense of such Third Party Claim. If a Party asserts its right to participate in the defense and investigation of any Third Party Claim, the Party controlling the defense and investigation of such Third Party Claim shall act in good faith and reasonably consult and cooperate with the Indemnitee or the Indemnifying Party, as the case may be, in connection with any appearances, briefs, arguments and proposals made or submitted by or on behalf of any party in connection with the Third Party Claim (including considering in good faith all reasonable additions, deletions or changes suggested by the Indemnitee or the Indemnifying Party, as the case may be, in connection with any filings made with any Governmental Entity or proposals to the Third Party claimant in connection therewith). With respect to any Third Party Claim that implicates both Parties in any material respect due to the allocation of Liabilities, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Ancillary Agreements, the Parties agree to use commercially reasonable efforts to cooperate fully and maintain a joint defense (in a manner that, to the extent reasonably practicable, will preserve for all Parties any Privilege with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in ). The Party that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes is not responsible for managing the defense of any such Third Party ClaimClaim shall, each Indemnitee will have the right upon reasonable request, be consulted with respect to participate significant matters relating thereto and may, if necessary or helpful, retain counsel to assist in the defense thereof and of such claims. Notwithstanding the foregoing, nothing in this Section 6.4(d) shall derogate from a Party’s right to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes control the defense of any such Third Party ClaimAction in accordance with Section 6.4.
(e) Each of the Parties agrees that at all times from and after the Distribution Effective Time, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party if an Action is entitled to and chooses to defend commenced by a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof naming two (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
2) or more Parties (c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any member of its Affiliates such Parties’ respective Groups) as defendants and with respect to which one or more named Parties (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any member of its Affiliates. If each Indemnifying such Party’s Group) is a nominal defendant and/or such Action is related solely to an Asset or Liability that the other Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee has been assigned under this Agreement, except any Ancillary Agreement or any Third Party Agreement, then the other Party or Parties shall use commercially reasonable efforts to cause such nominal defendant to be removed from such Action, as soon as reasonably practicable.
(f) The provisions of this Section 6.4 (other than this Section 6.4(f)) and Section 6.7 (other than Section 6.7(g)) shall not apply to Taxes (Taxes being governed by the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureTax Matters Agreement).
Appears in 3 contracts
Sources: Separation Agreement (Bluebird Bio, Inc.), Separation Agreement (2seventy Bio, Inc.), Separation Agreement (2seventy Bio, Inc.)
Procedures for Indemnification. (a) If a party entitled to indemnification under this Section 11 (an “Indemnified Party”) asserts that it has suffered or incurred a Loss for which it is entitled to indemnification or that a party obligated to indemnify it has become obligated to such Indemnified Party, or if any suit, action, investigation, claim or demand proceeding is begun, made against an Indemnitee by any Person who is not or instituted as a result of which the Indemnified Party may become entitled to indemnification or a party obligated to this Agreement indemnify it has become obligated to an Indemnified Party, such Indemnified Party shall give prompt written notice to (and who is not an Affiliate i) in the case of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide claim for indemnification pursuant to this Agreement (a "Third Party Claim"Section 11.2(a), the applicable Seller against whom such Indemnitee will notify claim is asserted, (ii) in the Indemnifying Party in writingcase of a claim for indemnification pursuant to Section 11.2(b), the Seller Representative, and (iii) in reasonable detailthe case of a claim for indemnification pursuant to Section 11.3, of the Third Party Claim reasonably promptly after becoming aware of Buyer (each such Third Party Claim; providedperson, however, that failure an “Indemnifying Party”). No delay in delivering such written notice to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated relieve the Indemnifying Party from any obligation hereunder or prevent the Indemnifying Party from recovering in respect of any claim for indemnification pursuant to and in accordance with this Section 11 unless, and then solely to the extent that, the Indemnifying Party is actually and materially prejudiced thereby. Such notice by the Indemnified Party will describe the claim giving rise to an obligation of indemnification in reasonable detail and will indicate the estimated amount, if reasonably practicable, of the Loss that it has been actually prejudiced as or may be sustained by the Indemnified Party. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five (5) Business Days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim. Within 30 days after delivery of a result notice pursuant to this Section 11.6 (the “Response Period”), the Indemnifying Party shall deliver to the Indemnified Party a written response to such notice. If, during the Response Period, the Indemnifying Party delivers a written notice disputing the Indemnified Party’s entitlement to indemnification of the Losses described in such failurenotice, the parties shall use their commercially reasonable efforts to settle such disputed matters within 30 days following the expiration of the Response Period. The parties hereto acknowledge and agree that the Federal Rules of Evidence Rule 408 shall apply to the parties hereto during any such negotiations and any subsequent dispute arising therefrom. If the parties are unable to reach agreement within such 30-day period, the dispute may be resolved by any legally available means consistent with the provisions of Section 15.2.
(b) If This Section 11.5(b) shall apply to any suit, action, investigation, claim or proceeding asserted by a Third Party Claim is made third party against an Indemnitee and the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third “Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to ”). The parties hereto shall cooperate and provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate assistance in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Partyor prosecution thereof. The Indemnifying Indemnified Party will be liable for may not settle or compromise any Third-Party Claim without the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure prior written consent of the Indemnifying Party (not to acknowledge its indemnification obligation as aforesaidbe unreasonably withheld, conditioned or delayed). If the Indemnifying No Indemnified Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or nor any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third discharge any Third-Party Claim without the Indemnifying Party's prior written consent (which of the Indemnifying Party, such consent will not to be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtwithheld or delayed. The failure by any Indemnitee so to notify Indemnified Party and the Indemnifying Party will not relieve cooperate with each other in all reasonable respects in connection with the Indemnifying defense of any Third-Party from any liability which it may have Claim, including making available records relating to such Indemnitee under this AgreementThird-Party Claim and furnishing, except without expense (other than reimbursement of actual out-of-pocket expenses) to the extent that defending party, management employees of the Indemnifying Party shall have demonstrated that it has been actually prejudiced non-defending party as a result may be reasonably necessary for the preparation of the defense of such failureThird-Party Claim.
(c) To the extent of any conflict between Section 10.2(b) and this Section 11.5, Section 10.2(b) shall govern.
Appears in 3 contracts
Sources: Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party under Section 12.2 or Section 12.3 of notice of the commencement of any third party action or other event for which indemnification may be available under Section 12.2 or 12.3, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemnitee by any Person who is not a indemnifying party under such Section, give notice to this Agreement (and who is not an Affiliate of a the indemnifying party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware commencement thereof, but the failure so to notify that indemnifying party shall not relieve it of such Third Party Claim; providedany liability that it may have to any indemnified party, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall have demonstrated be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforshall elect, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee indemnifying party shall not be liable to such indemnified party under such Section for any fees of other counsel or any other expenses, in each case incurred by such indemnified party in connection with the indemnified party's own defense thereof, other than reasonable costs of investigation and costs and expenses of legal counsel if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be one or more defenses available to it and not available to the indemnifying party which defenses result in a conflict of interest. If an indemnifying party assumes the defense of such an action, (a) such assumption will not conclusively establish for purposes of this Agreement that the claims made are within the scope of and subject to indemnification; (b) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's consent unless required (i) there is no finding or admission or any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by lawthe indemnifying party; and (c) admit any the indemnified party shall have no liability with respect to, or settle, to any compromise or dischargesettlement thereof effected without its consent. If notice is given to an indemnifying party of any claim for indemnification hereunder and the indemnifying party does not, such Third Party Claim without within ten (10) days after the Indemnifying Partyindemnified party's prior written consent (which consent notice is given, give notice to the indemnified party of its election to assume the defense thereof, the indemnifying party will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted bound by written notice given any determination made in connection therewith or any compromise or settlement effected by the Indemnitee indemnified party. Notwithstanding the foregoing, if an indemnified party determines in good faith that there is a reasonable probability that a third-party claim may adversely affect it or its Affiliates other than as a result of monetary damages for which if would be entitled to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except the indemnified party may, by notice to the extent that indemnifying party, assume the Indemnifying Party exclusive right to defend, compromise or settle such third-party claim. Both the indemnified party and the indemnifying party shall have demonstrated that it keep the other fully informed of the status of any claim for which indemnification has been actually prejudiced as a result of such failuresought at all stages thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Health & Nutrition Systems International Inc), Asset Purchase Agreement (Tisi Christopher)
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against a Media Information Indemnitee or a New Ceridian Indemnitee (each, an Indemnitee "Indemnitee") by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as thereof; provided, that such Indemnitee shall have the Indemnifying Party diligently conducts right to employ counsel to represent such defense; provided thatIndemnitee if, if (i) in any such Indemnitee's reasonable judgment judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request which would make representation of the Indemnitee) of both such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoparties by one counsel inappropriate, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that such event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood, subject to the proviso of the preceding sentence, that the Indemnifying Party shall control such defense. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate . If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing responsibility for a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will not be unreasonably withheld).
(d) Any claim on account agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall have demonstrated not exceed the amount that it has been actually prejudiced would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as a result provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such failureThird Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Distribution Agreement (New Ceridian Corp), Distribution Agreement (New Ceridian Corp)
Procedures for Indemnification. (a) If a claim or demand is made against Promptly after receipt by an Indemnitee of written notice of the assertion or the commencement of any Action by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (a “Third-Party Claim”) with respect to any matter referred to in Section 9.2 or Section 9.3, the "applicable Indemnitee shall give written notice thereof to the Indemnifying Party", which notice shall include a description of the Action, the amount thereof (if known and quantifiable) may be obligated and the basis for the Action, and thereafter shall keep the applicable Indemnifying Party reasonably informed with respect thereto; provided, that failure of the applicable Indemnitee to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify give the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification notice as provided hereunder except to the extent the Indemnifying Party herein shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, of its obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced thereby. Thereafter, the applicable Indemnitee shall deliver to the Indemnifying Party, promptly following the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee to the extent relating to the Third-Party Claim and reasonably necessary to the Indemnifying Party’s analysis thereof. A claim for indemnification by an Indemnitee for any matter not involving a Third-Party Claim may be asserted by notice to the Indemnifying Party. The Indemnifying Party shall have demonstrated the right to control the defense and handling, and settle or compromise, of any Third-Party Claim at its sole expense; provided, that it has been actually prejudiced as a result the Indemnitee shall be entitled to participate in the defense of such failureAction giving rise to its claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below) by appointing a counsel reasonably acceptable to the applicable Indemnitee to be the lead counsel in connection with such defense; provided, that:
(a) the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided, that the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such separate counsel that are incurred prior to the date the Indemnifying Party effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnifying Party, and except that the Indemnifying Party shall pay all of the fees and expenses of such separate counsel if a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee);
(b) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses of counsel retained by the Indemnitee if (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (ii) the Indemnitee reasonably believes an adverse determination with respect to the Action giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee’s reputation or future business prospects of the Indemnitee; (iii) the claim seeks an injunction or equitable relief against the Indemnitee; (iv) a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnitee; (v) upon written notice from the Indemnitee to the Indemnifying Party that the Indemnifying Party failed or is failing to vigorously prosecute or defend such claim with reasonable detail of the Indemnitee’s good faith justifications for such determination; and
(c) if the Indemnifying Party shall control the defense of any such claim, the Indemnifying Party shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or ceasing to defend such claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Maxeon Solar Technologies, Ltd.), Asset Purchase Agreement (Complete Solaria, Inc.)
Procedures for Indemnification. (a) An Indemnitee shall give notice of any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement or any Ancillary Agreement (other than the Commercial Agreements) (other than a Third-Party Claim which shall be governed by Section 9.4(b)) to any Party that is or may be required pursuant to this Agreement or any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) promptly (and in any event within fifteen (15) days) after making such a determination. Such notice shall state the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement or the applicable Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party Party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it gives written notice of its intention to do so (including a Third statement that the Indemnitee is entitled to indemnification under this Article IX) to the applicable Indemnitees within thirty (30) days of the receipt of notice from such Indemnitees of the Third-Party Claim is made against an Indemnitee and (failure of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, respond within such thirty (30) day period shall be deemed to be an election by the Indemnifying Party will be entitled not to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the for such Third-Party Claim). After a notice from an Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel and to represent such Indemnitee and participate in that event (but not control) the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If defense, compromise or settlement thereof, at the Indemnitee’s own expense and, in any event, shall reasonably cooperate with the Indemnifying Party assumes in such defense and make available to the defense of any Indemnifying Party all witnesses and information in such Third Party Claim, each Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the good faith judgment of the Indemnitee, result in the loss of any existing privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 9.4, in the event that (i) an Indemnifying Party elects not to assume the defense of a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the Indemnitee, (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder, or (v) the Person making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee shall be entitled to control the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing (such counsel to be reasonably acceptable to the Indemnifying Party). If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any information the disclosure of which would, in the good faith judgment of the Indemnifying Party, result in the loss of any existing privilege with respect to such information or violate any applicable Law. The Indemnifying Party will be liable for shall timely and regularly pay or reimburse the Indemnitee’s expenses incurred in defense of such Third-party Claim, including all attorneys’ fees and litigation costs, as such expenses of counsel employed are incurred by the Indemnitee for any period during which Indemnitee.
(e) Unless the Indemnifying Party has failed to assume the defense thereof of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If an Indemnifying Party has failed to diligently conduct assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, consent decree, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Absent fraud or intentional misconduct by an Indemnifying Party, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement or any Ancillary Agreement, and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Aimco OP L.P.), Separation and Distribution Agreement (Aimco Properties L.P.)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee the Indemnified Party by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "“Third Party Claim"”), such Indemnitee will describing the Third Party Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided, that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder. Notwithstanding anything to the contrary set forth herein, to the extent a claim for indemnification in respect of a single action, lawsuit, proceeding, investigation or demand or other claim is being sought by both a Company Indemnified Party under Section 9.2(g) and a Seller Indemnified Party under Section 9.3(c), for purposes of this Section 9.6, the sole Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result be deemed to be the Company. Any Indemnifying Party shall be entitled to participate in the defense of such failure.
(b) If a Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will option shall be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with by appointing a reputable counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnitee. Should Indemnified Party to be the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee lead counsel in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) that the Indemnified Party shall be entitled to participate in any Indemnitee's reasonable judgment a conflict the defense of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoto employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such Indemnitee will action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to employ direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel to represent such Indemnitee counsel, and in that event the reasonable fees and expenses of such separate counsel will shall be paid borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay except to the extent otherwise provided in Section 9.2 (as it relates to Section 9.2(g)) and Section 9.3) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense. If the Indemnifying Party assumes shall not reasonably promptly assume the defense of any such Third Party Claim, each Indemnitee will have the right or fails to participate in the defense thereof and to employ counsel, at its own expense, separate prosecute or withdraws from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with may defend against such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claimmatter, at the request Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that, the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party all the Indemnitees will reasonably cooperate with (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party in with respect to a Covered Claim even though the defense amount thereof (such cooperation to be at plus the expenseamount of other Covered Claims previously notified by the Indemnified Party aggregate is less than the Deductible or the Special Product Deductible, including reasonable legal fees and expenses, of the Indemnifying Party)as applicable.
(c) Notwithstanding anything to In the contrary contained herein, no Indemnifying Party will consent to event that any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee party or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and alleges that it is entitled to assumeindemnification hereunder, and that its claim is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or dischargecovered under more than one provision of this ARTICLE IX, such Third Party Claim without party or Affiliates shall be entitled to elect the Indemnifying Party's prior written consent (provision or provisions under which consent will not be unreasonably withheld)it may bring a claim for indemnification.
(d) Any A claim on account of Damages which does for indemnification for any matter not involve involving a Third Party Claim shall may be asserted by written notice given by the Indemnitee to the Indemnifying Party party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Procedures for Indemnification. (a) If In the case of a third party claim or demand is (“Third-Party Claim”) made against an Indemnitee by any Person who is not a party to Party of this Agreement (and who is not or an Affiliate of a party to this Agreementthereof) as to which a party Party (the "Indemnifying Party"“Indemnitor”) may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee Party seeking indemnification hereunder (“Indemnitee”) will notify the Indemnifying Indemnitor in writing of the Third-Party in writing, Claim (and specifying in reasonable detaildetail the factual basis for the Third-Party Claim and to the extent known, the amount of the Third Third-Party Claim Claim) reasonably promptly after becoming aware of such Third Third-Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party Indemnitor shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify Indemnitor will be entitled, within one hundred twenty (120) days after receipt of written notice from the Indemnitee thereforof the commencement or assertion of any such Third Party Claim, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying PartyIndemnitor) with counsel selected by the Indemnifying Party Indemnitor and reasonably satisfactory to the Indemnitee, for so long as the Indemnitor is conducting a good faith and diligent defense. Should the Indemnifying Party Indemnitor so elect to assume the defense of a Third Party Claim, :
(i) the Indemnifying Party Indemnitor will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided thatprovided, that if (i) in any Indemnitee's reasonable judgment under applicable standards of professional conduct a conflict of interest exists [*] Confidential treatment requested. between the Indemnitor and the Indemnitee in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee will shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnitor) to represent such Indemnitee with respect to the matters as to which a conflict of interest exists and in that event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If Indemnitor; provided, further, that the Indemnifying Party assumes Indemnitor shall only be responsible for the defense reasonable fees and expenses of any one separate counsel (plus local counsels as required) for such Third Party Claim, each Indemnitee;
(ii) the Indemnitee will 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. The Indemnifying Party will be liable for Indemnitor;
(iii) the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party Indemnitor will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim Claim, as may be reasonably requested by the Indemnitee (including, without limitation, including providing to the Indemnitee on reasonable request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party ; and
(iv) all the Indemnitees will shall reasonably cooperate with the Indemnifying Party Indemnitor in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying PartyIndemnitor).
(c) Notwithstanding anything If the Indemnitor does not elect to assume control of the, defense of any Third Party Claim within the 120-day period set forth above, or if such good faith and diligent defense is not being or ceases to be conducted by the Indemnitor, the Indemnitee shall have the right, at the expense of the Indemnitor, after three (3) Business Days notice to the contrary contained hereinIndemnitor of its intent to do so, no Indemnifying to undertake the defense of the Third Party Claim for the account of the Indemnitor (with counsel selected by the Indemnitee), and to compromise or settle such Third Party Claim, exercising reasonable business judgment.
(d) If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third-Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of such Third-Party Claim that the Indemnitor may recommend, exercising reasonable business judgment, that by its terms obligates the Indemnitor to pay the full amount of Third Party Liabilities (whether through settlement or otherwise) in connection with such Third-Party Claim and unconditionally and irrevocably releases the Indemnitee completely from all Third Party Liabilities in connection with such Third-Party Claim; provided, however, that, without the Indemnitee’s prior written consent, the, Indemnitor shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided), however, that, without limiting the Indemnitee's rights set forth in this sentence, and the Indemnitee may refuse to agree to any such settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claimdischarge, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee for a Third Third-Party Claim and is entitled to assume, and is diligently conducting, the defense thereofClaim, the Indemnitee will shall not (unless required by lawLaw) admit any liability with respect to, or settle, compromise or discharge, such Third Third-Party Claim without the Indemnifying Party's Indemnitor’s prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Finished Product Supply Agreement, Finished Product Supply Agreement (Aptalis Holdings Inc.)
Procedures for Indemnification. (a) If a party seeking indemnification (the “Indemnified Party”) shall claim to have suffered a Loss for which indemnification is available under Section 8.2 or demand 8.3, as the case may be, the Indemnified Party shall promptly notify the party responsible for indemnification under this Article VIII (the “Indemnifying Party”) in writing of such claim which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made against an Indemnitee (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by any Person who is not a party to this Agreement the Indemnified Party) (and who is not an Affiliate of a party to this Agreementsuch notification being the “Claim Certificate”). In the event that within thirty (30) as to which a party (days after the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify receipt by the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third a written notice from the Indemnified Party, the Indemnified Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent have received from the Indemnifying Party a written objection to such claim, such claim shall be conclusively presumed and considered to have demonstrated that it has been actually prejudiced as assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party of a result of written notice from the Indemnified Party to such failureeffect.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges objects to the indemnification of an Indemnified Party in writing its obligation to indemnify the Indemnitee thereforrespect of any claim or claims specified in any Claim Certificate, the Indemnifying Party will be entitled shall deliver a written notice to assume such effect to the defense thereof Indemnified Party within thirty (at the expense of the Indemnifying Party30) with counsel selected days after receipt by the Indemnifying Party and reasonably satisfactory to the Indemniteeof such Claim Certificate. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimThereafter, the Indemnifying Party will and the Indemnified Party shall attempt in good faith to agree upon the rights of the respective parties for a period of not be liable to the Indemnitee for any legal or other expenses subsequently incurred less than thirty (30) days after receipt by the Indemnitee in connection with the defense thereof as long as the Indemnifying Indemnified Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails written objection with respect to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) each of such Indemnifying Party's financial capacity claims to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume objected. If the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of Indemnified Party and the Indemnifying Party agree with respect to acknowledge its indemnification obligation as aforesaid). If any of such claims, the Indemnified Party and the Indemnifying Party assumes shall promptly prepare and sign a memorandum setting forth such agreement. Should the defense of any such Third Indemnified Party Claim, and the Indemnifying Party will promptly supply fail to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries agree as to the status thereof). If the Indemnifying Party is any particular item or items or amount or amounts (each, a “Disputed Claim”) within such 30-day period, then either party shall be entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)pursue its available remedies for resolving its claim for indemnification.
(c) Notwithstanding anything to the contrary contained herein, no An Indemnifying Party will consent shall promptly reimburse an Indemnified Party for all Losses under a claim, or Buyer may offset amounts due to any settlementBuyer or its Affiliates as an Indemnified Party against amounts due to Seller under the Note, compromise or discharge after thirty (including 30) days passes from the consent to entry receipt of any judgment) of any Third a Claim Certificate by the Indemnified Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate objection by the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) thator, in the reasonable opinion event a claim is disputed, resolution of the Indemnitee, would otherwise adversely affect Indemnified Party’s claim is reached under the Indemnitee or any terms of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheldSection 8.4(b).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Purchase Agreement (Energy & Power Solutions, Inc.), Purchase Agreement (Energy & Power Solutions, Inc.)
Procedures for Indemnification. (a) If a claim or demand is made against As used herein, an Indemnitee by any Person who is not "Indemnified Party" means a party seeking indemnification for any Loss (including, but not limited to this Agreement (attorneys fees) pursuant to Section 11.2 or 11.3 hereof, as applicable, and who is not an Affiliate of a party to this Agreement) as to which a party (the term "Indemnifying Party") may be " means the party who is obligated to provide indemnification pursuant under Section 11.02 or 11.3, as applicable. The Indemnified Party agrees to this Agreement give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, ) of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that which it has been actually prejudiced as a result of knowledge, for which such failure.
(b) If a Third Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume indemnification under this Article 11. In the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Party Claim, the Indemnifying Party will not be liable have the right to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with direct, through counsel of its own choosing, the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in or settlement of any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoat its own expense. In such case, the Indemnified Party may participate in such Indemnitee will have defense, but in such case the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel the Indemnified Party will be paid by such Indemnifying the Indemnified Party. If The Indemnified Party will promptly provide the Indemnifying Party assumes with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, each Indemnitee unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld, delayed or conditioned) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld, delayed or conditioned. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to settlement or assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes reassume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Epic Energy Resources, Inc.), Stock Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. As used herein, an "Indemnified Party" means a Party seeking indemnification for any Loss (aincluding, but not limited to attorneys fees) If a claim pursuant to Section 10.2 or demand is made against an Indemnitee by any Person who is not a party to this Agreement (10.3 hereof, as applicable, and who is not an Affiliate of a party to this Agreement) as to which a party (the term "Indemnifying Party") may be " means the Party who is obligated to provide indemnification pursuant under Section 10.2 or Section 10.3, as applicable. The Indemnified Party agrees to this Agreement give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, ) of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that which it has been actually prejudiced as a result of knowledge, for which such failure.
(b) If a Third Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume indemnification under this Article 10. In the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Party Claim, the Indemnifying Party will not be liable have the right to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with direct, through counsel of its own choosing, the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in or settlement of any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoat its own expense. In such case, the Indemnified Party may participate in such Indemnitee will have defense, but in such case the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel the Indemnified Party will be paid by such Indemnifying the Indemnified Party. If The Indemnified Party will promptly provide the Indemnifying Party assumes with access to the Indemnified Party's records and personnel relating to any such Third Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in the defense or settlement of such Third Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third Party Claim, each Indemnitee unless the Indemnifying Party consents in writing to such payment (which consent will not be unreasonably withheld) or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld. If the Indemnifying Party fails to defend or fails to prosecute or withdraws from such defense, then the Indemnified Party will have the right to undertake the defense or settlement thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes the defense of such Third Party Claim pursuant to this Section and proposes to settle such claim prior to a final judgment thereon or to forgo appeal with respect thereto, then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to settlement or assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes reassume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Epic Energy Resources, Inc.), Membership Interest Purchase Agreement (Epic Energy Resources, Inc.)
Procedures for Indemnification. (a) If Whenever a claim Claim shall arise for indemnification resulting from or demand is made against an Indemnitee in connection with a Claim by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (a “Third-Party Claim”) (other than under Section 9.02(b)(iv)), the "Person entitled to indemnification (the “Indemnified Party”) shall promptly notify the Party from which indemnification is sought (the “Indemnifying Party"”) may be obligated of such Claim and, when known, the facts constituting the basis of such Claim; provided, that failure to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writingshall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent that the Indemnifying Party has been materially prejudiced by such failure. Following receipt of notice of any such Third-Party Claim, and unless (i) the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest, (ii) such Third-Party Claim (or the facts or allegations related to such Third-Party Claim) involves criminal allegations or seeks equitable or injunctive relief, (iii) the Indemnifying Party does not have the resources to satisfy such Third-Party Claim or (iv) such Third-Party Claim, if adversely determined, could reasonably be expected to materially adversely affect the business or reputation of the Indemnified Party or its Affiliates, the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee the option, at its cost and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforexpense, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third such Third-Party ClaimClaim and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party for any legal fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with the defense thereof (except as long as the Indemnifying Party diligently conducts such defense; expressly provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemniteecontrary herein) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the other than reasonable fees and expenses of counsel employed by the Indemnitee Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct not assumed the defense thereof, or if it does not expressly elect to, or is not entitled to, assume . The Indemnified Party shall have the option of joining the defense thereof of such Claim (including, in which shall be at the case sole cost and expense of a failure of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to acknowledge its indemnification obligation as aforesaid)the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. If In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Third-Party Claim with respect to which the Indemnifying Party assumes has assumed the defense in accordance with this Section 9.05(a), the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party shall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(b) Buyer shall promptly and diligently defend, prosecute or settle the matters described in Section 9.02(b)(iv) (including the defense of any members of the Seller Indemnified Group that are defendants or respondents with respect to such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereofmatters). If Buyer’s counsel shall have advised Buyer in writing, in which case Buyer shall deliver a copy to the Indemnifying Indemnified Party, or if the Indemnified Party reasonably believes, that there is entitled a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnified Party may retain its own counsel with respect to such defense and chooses Buyer shall pay the reasonable attorneys’ fees and expenses of counsel for such Indemnified Party. Buyer shall obtain the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, before entering into or making (or allowing the Companies to defend enter into or make) any settlement or compromise of the matters described in Section 9.02(b)(iv) if (i) such settlement or compromise does not include a Third full release of the Indemnified Party, (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party Claim, or (iii) the Indemnified Party reasonably believes that Buyer will not have the ability to satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the request time of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)settlement or compromise.
(c) Notwithstanding anything After the Closing Date, Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the Companies to grant to Seller (or its designees), access at all reasonable times to all of the information, books and records relating to the contrary contained hereinCompanies in its possession, and shall afford such party the right (at such party’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to implement the provisions of, or to investigate or defend any Third-Party Claims; provided that no Indemnifying Party will consent such party shall be entitled to make available any settlementinformation, compromise books or discharge (including records, the consent to entry disclosure of which would cause a waiver of any judgment) applicable privilege or breach of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount an obligation of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant confidentiality to a release which is third-party and either party may make access to such information, books and records conditioned upon execution and delivery of a confidentiality agreement reasonably satisfactory to the Indemniteeparty requesting disclosure. Further, after the Closing, Buyer shall cause the Companies to grant to Seller (or its designees) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, access and right to take extracts and make copies described in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee preceding sentence for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required such other purposes as may be reasonably requested by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Seller.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (US Power Generating CO), Purchase and Sale Agreement (Reliant Energy Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (and who is not or an Affiliate of thereof) (a party to this Agreement"Third Party Claim") as to which a party one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefortherefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee will shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each the Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, at its own expenseexpense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, to assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to If the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and is entitled to assume, and is diligently conducting, compliance with the defense thereofother terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a result 30-calendar-day period following the Indemnifying Party's receipt of notice of such failureclaim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11.
Appears in 2 contracts
Sources: Asset Purchase Agreement (General Motors Corp), Asset Purchase Agreement (General Motors Corp)
Procedures for Indemnification. Except as provided in Section 9.4:
(ai) Any claim by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by giving the party being indemnified (the “Indemnifying Party”) prompt written notice (a “Claim Notice”); provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.1 shall not affect such Indemnified Party’s rights under this Section 9.1 except and only to the extent such failure materially prejudices the Indemnifying Party. Such Claim Notice shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such Claim Notice to respond in writing to such Direct Claim. During such thirty (30) day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have accepted such claim.
(ii) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Section 9.1 shall be determined: (i) by this Agreement; (ii) by a claim determination of a court of competent jurisdiction in accordance with Section 10.16; or demand is (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree in writing (a “Determination”). All amounts due to the Indemnified Party shall be paid within ten (10) Business Days after such Determination pursuant to Section 9.5.
(iii) An Indemnified Party shall notify the Indemnifying Party promptly in writing, and in reasonable detail, of any Legal Proceeding made against an Indemnitee by any Person who is not a party to this Agreement (and who is not or an Affiliate of a party to this Agreement, or a representative of the foregoing against the Indemnified Party (a “Third Party Claim”) as with respect to which a party (the "Indemnifying Party") may be Party is obligated to provide indemnification pursuant under this Agreement. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to this Agreement (a "Third Party Claim"), such Indemnitee will the Indemnified Party must notify the Indemnifying Party in writingwith a copy of the complaint within ten (10) calendar days after receipt thereof and shall deliver a copy of such complaint to the Indemnifying Party within ten (10) calendar days after the receipt of such complaint; provided, however, that the failure of any Indemnified Party to give such notice shall not affect such Indemnified Party’s rights under this Section 9.1 except and only to the extent such failure materially prejudices the Indemnifying Party. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party.
(iv) In the event of the initiation of any Legal Proceeding with respect to a Third Party Claim (in which the only relief sought is monetary damages), the Indemnifying Party may elect, at its own expense, to be represented by counsel of its choice (reasonably promptly after becoming aware of acceptable to the Indemnified Party) and to control and defend such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent (A) the Indemnifying Party shall have demonstrated gives written notice that it has been actually prejudiced as a result of such failure.
(b) If a will defend the Third Party Claim is made against an Indemnitee and to the Indemnifying Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify within thirty (30) days after the Indemnitee therefor, the Indemnifying Indemnified Party will be entitled to assume the defense thereof (at the expense has given notice of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimClaim under Section 9.1(j)(iii), and (B) the Indemnifying Third Party will Action does not be liable relate to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee otherwise arise in connection with the defense thereof as long as the Indemnifying any criminal or regulatory enforcement Legal Proceeding. The Indemnified Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate (and to retain legal counsel to participate) in any such defense at its sole cost and expense except in the defense thereof case where the Indemnified Party shall have reasonably concluded in good faith that representation of both parties by the same counsel would be inappropriate, due to actual or potential differing interests between them, in which case the cost and expenses of counsel to employ counsel, at its own expense, separate from the counsel employed Indemnified Party shall be paid by the Indemnifying Party. The Indemnifying Party will be liable for Parties agree to cooperate fully with each other in connection with the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof defense, negotiation or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense settlement of any such Legal Proceeding, claim or demand. Such cooperation shall include the retention and the provision of records and information that are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party shall not settle, or agree to the entry of a final order in, any such proceeding without the prior written consent of the Indemnified Party unless (i) the sole recourse under such settlement or final order is payment by the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence monetary damages and documents relating to (ii) such settlement or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that final order does not obligate the Indemnifying Indemnified Party to pay the admit any liability and includes a full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the and unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Indemnified Parties.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Merger Agreement (Trulieve Cannabis Corp.), Merger Agreement (Trulieve Cannabis Corp.)
Procedures for Indemnification. Whenever a Claim shall arise for indemnification under Section 9.02, the Person entitled to indemnification (athe “Indemnified Party”) If a claim or demand shall promptly notify in writing the Party from which indemnification is made against an Indemnitee by any Person who is not a party to this Agreement sought (and who is not an Affiliate the “Indemnifying Party”) of such Claim and, when known, the facts constituting the basis of such Claim, provided that in the event of a Claim for indemnification resulting from or in connection with a Claim by a third party, the Indemnified Party shall give such written notice thereof to the Indemnifying Party not later than ten (10) Business Days prior to the time any response to the third party Claim is required, if possible, and in any event within fifteen (15) Business Days following receipt of notice thereof (provided, that failure to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will timely notify the Indemnifying Party in writingshall not relieve the Indemnifying Party of any liability it may have to the Indemnified Party, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent that the Indemnifying Party has been actually prejudiced by such failure). Following receipt of notice of any such third party Claim, and unless counsel to the Indemnified Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest, the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee the option, at its cost and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforexpense, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimsuch matter and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party for any legal fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with the defense thereof (except as long as the Indemnifying Party diligently conducts such defense; expressly provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemniteecontrary herein) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the other than reasonable fees and expenses of counsel employed by the Indemnitee Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct not assumed the defense thereof, or if it does not expressly elect to, or is not entitled to, assume . The Indemnified Party shall have the defense thereof (including, in the case option of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes joining the defense of such Claim (which shall be at the sole cost and expense of the Indemnified Party) with its own counsel and counsel for each Party shall, to the extent consistent with such counsel’s professional responsibilities, cooperate with the other Party and any counsel designated by that Party. In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Third Party Claim, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other Party will promptly supply and shall enter into only such settlement or compromise or consent to the Indemnitee copies entry of all correspondence and documents relating any judgment as the other Party shall consent, such consent not to be unreasonably withheld, conditioned or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof)delayed. If the An Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to shall not be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to liable for any settlement, compromise or discharge (including judgment not made in accordance with the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this preceding sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Calpine Corp), Purchase and Sale Agreement (Xcel Energy Inc)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 13.2 or Section 13.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other Claim against an Indemnitee the Indemnified Party by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "“Third Party Claim"”), describing the Third Party Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail (such Indemnitee will written notice, an “Indemnification Notice”); provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureprompt notice hereunder.
(b) If a Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will option shall be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with by appointing a reputable counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnitee. Should Indemnified Party to be the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee lead counsel in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict that such assumption of interest exists in the defense shall be deemed to constitute an admission of Liability with respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request Third Party Claim for the purposes of this Agreement; provided further, that the Indemnitee) Indemnified Party shall be entitled to participate in the defense of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent of its choice for such Indemnitee and in purpose (provided that event the reasonable fees and expenses of such separate counsel will shall be paid borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE XIII). Notwithstanding the foregoing, if (i) the Third Party Claim is primarily for non-monetary damages against the Indemnified Party or seeks an injunction or other equitable relief that, if granted, would reasonably be expected to be material to the Indemnified Party, (ii) the Indemnified Party shall have determined in good faith that an actual or potential conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel or the counsel selected by the Indemnifying Party inappropriate, (iii) the Third Party Claim is by a customer or supplier, the loss of the commercial relationship with whom would be materially adverse to the Business, or (iv) the Third Party Claim is a criminal Proceeding, then in each case the Indemnified Party may, upon notice to the Indemnifying Party, assume the exclusive right to defend, compromise and settle such Third Party Claim and the reasonable fees and expenses of the Indemnified Party’s separate counsel shall be borne (A) in the case of (i) and (iv) above, by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice of the Indemnified Party’s assumption of the defense of such Third Party Claim) and (B) in the case of (ii) and (iii) above, by the Indemnified Party.
(c) Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party, (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation, including by making employees, information and documentation reasonably available. If the Indemnifying Party assumes shall not reasonably promptly assume the defense of any such Third Party Claim, each Indemnitee will have or fails to prosecute or withdraws (such failure to prosecute or withdrawal shall not effect the right to participate in admission of liability based on the assumption of the defense thereof and to employ counsel, at its own expense, separate of such Third Party Claim) from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply to may defend against such matter in a manner consistent with the Indemnitee copies above provisions regarding conduct of all correspondence and documents relating to or in connection with the defense by the Indemnified Party; provided that the Indemnified Party may not settle any such Third Party Claim and keep matter without the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request written consent of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to which consent shall not be at the expense, including reasonable legal fees and expenses, of the Indemnifying Partyunreasonably withheld or delayed).
(ce) Notwithstanding anything to In the contrary contained herein, no Indemnifying Party will consent to event that any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee party or any of its Affiliates Subsidiaries alleges that it is entitled to indemnification hereunder, and that its Claim is covered under more than one provision of this ARTICLE XIII, such party or Subsidiaries shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.
(zf) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or A claim for indemnification for any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for matter not involving a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall may be asserted by written notice given by the Indemnitee to the Indemnifying Party party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Purchase Agreement (Tyco International LTD /Ber/), Purchase Agreement (Aecom Technology Corp)
Procedures for Indemnification. (a) If a claim Any Person seeking any indemnification under this Article VII (an “Indemnified Party”), acting through AGSA or demand AMPSA, as applicable, shall give the Party from which indemnification is made against being sought (an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement prompt notice (a "Third “Claim Notice”) of any matter which such Indemnified Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, has determined has given or could give rise to a right of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimindemnification under this Article VII; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying if an Indemnified Party shall have demonstrated that it has been actually prejudiced as a result receive written notice of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a any Third Party Claim, the Indemnifying Indemnified Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as shall give the Indemnifying Party diligently conducts a Claim Notice within twenty (20) days after receipt by the Indemnified Party of such defense; provided that, if notice. The Claim Notice shall (i) in any Indemnitee's reasonable judgment indicate whether the matter for which indemnification is sought (an “Indemnity Claim”) results from or arises out of a conflict of interest exists in respect of such Third Party claim (a “Third Party Claim”) or a direct claim, (ii) any Indemnifying Party fails describe with reasonable specificity the nature of the Indemnity Claim and (iii) state the amount of direct costs sought pursuant to provide reasonable assurance such Indemnity Claim to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtextent then known. The failure by any Indemnitee so to notify deliver or timely deliver the Indemnifying Claim Notice shall not affect the rights of the Indemnified Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee indemnification under this AgreementArticle VII, except and only to the extent that the Indemnifying Party shall have demonstrated that it has been actually and materially prejudiced as a result by reason of such failure.
Appears in 2 contracts
Sources: Services Agreement (Ardagh Metal Packaging S.A.), Services Agreement (Ardagh Metal Packaging S.A.)
Procedures for Indemnification. (a) An Indemnitee shall give prompt notice of any matter that such Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement or any Ancillary Agreement (other than a Third-Party Claim which shall be governed by Section 9.4(b)) to any Party that is or may be required pursuant to this Agreement or any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) promptly (and in any event within fifteen (15) days) after making such a determination. Such notice shall state the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement or the applicable Ancillary Agreement in respect of which such right of indemnification is claimed by such Indemnitee; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party Party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall promptly notify the Indemnifying Party in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall promptly deliver to the Indemnifying Party (and in any event within ten (10) days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it gives written notice of its intention to do so (including a Third statement that the Indemnitee is entitled to indemnification under this Article IX) to the applicable Indemnitees within thirty (30) days of the receipt of notice from such Indemnitees of the Third-Party Claim is made against an Indemnitee and (failure of the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, respond within such thirty (30) day period shall be deemed to be an election by the Indemnifying Party will be entitled not to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the for such Third-Party Claim). After a notice from an Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses and information in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the good faith judgment of the Indemnitee, result in the loss of any existing privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 9.4, in the event that (i) an Indemnifying Party will elects not to assume the defense of a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the Indemnitee, (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder, or (v) the Person making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee shall be liable for entitled to control the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing (such counsel to be reasonably acceptable to the Indemnifying Party). If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses and information in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the good faith judgment of the Indemnifying Party, result in the loss of any existing privilege with respect to such information or violate any applicable Law.
(e) Unless the Indemnifying Party has failed to assume the defense thereof of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed). If an Indemnifying Party has failed to diligently conduct assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Absent fraud or intentional misconduct by an Indemnifying Party, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement or any Ancillary Agreement, and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Spirit MTA REIT), Separation and Distribution Agreement (Spirit MTA REIT)
Procedures for Indemnification. (a) If a an Indemnitee shall receive notice or otherwise learn of the assertion of any claim or demand is made against an Indemnitee commencement of any proceeding (including any governmental investigation) by any Person a person who is not a party to this Agreement (and who is not an or any Affiliate of either party) (a party to this Agreement"Third-Party Claim") as with respect to which a party (the "an Indemnifying Party") Party may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the shall give such Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably written notice thereof promptly after becoming aware of such Third Third-Party ClaimClaim setting forth the particulars as to such claim or proceeding in reasonable detail; providedprovided that the failure of any Indemnitee to give notice as provided in this SECTION 4.4(A) shall not relieve the related Indemnifying Party of its obligations under this ARTICLE IV, however, that unless such Indemnifying Party is actually prejudiced by such failure to give any such notification will not affect the indemnification provided hereunder except notice, and then only to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureactual prejudice.
(b) If An Indemnifying Party may, to the extent it wishes within 30 days of receipt of notice of a Third Third-Party Claim is made against and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; provided that the Indemnitee may participate in such settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the such Indemnifying Party will shall not be liable to the such Indemnitee under this ARTICLE IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by the such Indemnitee in connection with the defense thereof as long as thereof; provided that if the defendants in any such Third-Party Claim include both the Indemnifying Party diligently conducts such defense; provided thatand one or more Indemnitees, if (i) and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee will Indemnitees shall have the right to employ separate counsel to represent such Indemnitee and in Indemnitees. In that event event, the reasonable fees and expenses of such separate counsel will (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If ; provided further if and to the Indemnifying Party assumes extent that there is a conflict of defenses or positions among the defense of any such Third Party ClaimIndemnitees, each Indemnitee will the Indemnitees shall have the right to retain such number of additional separate counsel, reasonably satisfactory to the Indemnifying Party, as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional separate counsel; provided further that the Indemnitee may participate in the settlement or defense thereof and to employ counsel, at its own expense, separate from the of a Third-Party Claim through counsel employed chosen by the Indemnifying Party. The Indemnifying Party will be liable for such Indemnitee if the fees and expenses of such counsel employed shall be borne by the Indemnitee for any period during which the such Indemnitee. If an Indemnifying Party has failed elects not to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of responsibility for defending a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, such Indemnitee may defend or seek to compromise or settle such Third-Party Claim, but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the foregoing, the Indemnifying Party will promptly supply to the Indemnitee copies shall not be liable for any settlement of all correspondence and documents relating to or in connection with such Third any Third-Party Claim and keep effected without its written consent. The Indemnifying Party shall not, except with the Indemnitee fully informed consent of all developments relating to the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the giving by the person or in connection with persons asserting such Third Third-Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as all Indemnitees an unconditional release from all Liability with respect to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third such Third-Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof or (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(cii) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge . (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dc) Any claim on account of Damages which a Loss that does not involve result from a Third Third-Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Such Indemnifying Party shall have demonstrated a 6 9 period of 30 days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such party under this Agreement or under applicable law. (d) In addition to any adjustments required pursuant to SECTION 4.3, if the amount of any Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction that it has been actually prejudiced as a result of such failurereceived by the Indemnitee, less any expenses properly incurred in connection therewith, shall promptly be repaid by the Indemnitee to the Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement (Landair Corp), Distribution Agreement (Landair Corp)
Procedures for Indemnification. (a1) If a claim Buyer Indemnified Party or demand is made against an Indemnitee by Seller Indemnified Party receives notice or otherwise obtains knowledge of any Person who is not a party to this Agreement matter (and who with respect to any claim under Section 5.15(b)(1)(x), any third party claim), for which such Buyer Indemnified Party or Seller Indemnified Party is not an Affiliate of a party reasonably likely to be entitled to indemnification and to be held harmless under this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement Section 5.15 (a "Third “Claim”) based on the information available, then the Indemnified Party Claim"), such Indemnitee will notify shall promptly (and within twenty (20) days) deliver to the Indemnifying Party in writinga written notice describing with reasonable specificity the nature and basis, and in reasonable detailestimated amount, of such Claim and, if available, such notice must be accompanied by a copy of any written notice to such Indemnified Party asserting the Third Claim. The Indemnified Party Claim reasonably promptly after becoming aware shall deliver to Indemnifying Party copies of such Third all other notices and documents received by the Indemnified Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except relating to the extent Claim. Subject to Section 5.15(d)(2), the Indemnifying Party shall have demonstrated that it has been actually prejudiced the right, at its option, to assume the defense of any such matter with its own counsel. Prior to the time the Indemnified Party is notified by Parent and Seller as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, whether the Indemnifying Party will be entitled to assume the defense thereof (at of such Claim, the expense Indemnified Party shall take all actions reasonably necessary to timely preserve the collective rights of the Indemnifying Partyparties with respect to such Claim, including responding timely to legal process.
(2) with counsel selected by the The Indemnifying Party and reasonably satisfactory shall have the right to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party any Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes elects to assume the defense of any such Third Party Claim, each Indemnitee will have then, notwithstanding anything to the right contrary contained in this Agreement, the Indemnifying Party shall not be required to participate pay or otherwise indemnify the Indemnified Party for any attorneys’ fees or other expenses incurred on behalf of the Indemnified Party in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by connection with defending such matter following the Indemnifying Party’s election to assume the defense of such matter, unless (x) the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that there may be one or more legal defenses available to such Indemnified Party or other Indemnified Parties that are not available to the Indemnifying Party, or (y) the Indemnified Party reasonably shall have concluded (upon advice of its counsel) that, with respect to such Claim, the Indemnified Party and the Indemnifying Party may have different, conflicting or adverse legal positions or interests, in which case, the Indemnifying Party shall not be permitted to assume the defense of such Claim. The Indemnified Party shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party or any of its Representatives and that the Indemnifying Party considers necessary or desirable in connection with such Claim, and cooperate in all reasonable ways with, and make its employees and advisors available or otherwise render reasonable assistance to, the Indemnifying Party and its Representatives. The Indemnifying Party will be liable for shall not, without the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure written consent of the Indemnifying Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed, settle or compromise any pending or threatened Legal Proceeding in respect of which indemnification may be sought hereunder (whether or not the Indemnified Party is an actual or potential party to acknowledge its indemnification obligation such Legal Proceeding) or consent to the entry of any judgment which does not, to the extent that the Indemnified Party may have any liability with respect to such Legal Proceeding or related Claim), include as aforesaid)an unconditional term thereof a written release of the Indemnified Party from all liability in respect of such Legal Proceeding and Claim. If the Indemnifying Party assumes elects not to assume (or is not permitted to assume in accordance with this paragraph) the defense of any such Third Party Claim, then the Indemnified Party shall control the defense of such Claim with the assistance of counsel reasonably satisfactory to the Indemnifying Party will promptly supply (it being understood and agreed that only the reasonable, documented, out of pocket fees and expenses of one counsel to all applicable Indemnified Parties, and if reasonably necessary, one local counsel in any relevant jurisdiction, shall be reimbursed by and deemed Losses for all purposes hereunder); provided, that the Indemnitee copies of all correspondence and documents relating Indemnified Party shall not settle or compromise such matter, or admit any liability with respect to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (includingmatter, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, prior written consent of the Indemnifying Party).
(c) , which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentenceSection 5.15(b)(1)(y), the Indemnitee may refuse Parties shall work together in good faith to expeditiously resolve any Claim; provided that this shall not be construed to require any Indemnified Party to pay any monies or agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) release that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely such Indemnified Party from all Liability liability in connection with such Third Party respect of any Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Hospitality Properties Trust), Equity Purchase Agreement (Spirit MTA REIT)
Procedures for Indemnification. (a) Third Party Claims (other than in respect of Shared Liabilities). If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 15 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or 50 other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partythereof. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate prosecution thereof. If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing liability for a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event shall the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent will of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not be unreasonably withheld).
(d) Any claim on account otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee shall agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall have demonstrated not exceed the amount that it has been actually prejudiced would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for 51 other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages. This Section 9.04(a) shall govern all claims under this Article IX for indemnification against Third Party Claims except Third Party Claims in respect of Shared Liabilities, as a result of such failureto which Section 9.04(b) shall govern.
Appears in 2 contracts
Sources: Master Intercompany Agreement (Hartford Life Inc), Master Intercompany Agreement (Hartford Life Inc)
Procedures for Indemnification. Except as provided in Section 9.4:
(ai) Any claim by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by giving the party being indemnified (the “Indemnifying Party”) prompt written notice (a “Claim Notice”); provided, however, that the failure of any Indemnified Party to give the Claim Notice promptly as required by this Section 9.1 shall not affect such Indemnified Party’s rights under this Section 9.1 except and only to the extent such failure materially prejudices the Indemnifying Party. Such Claim Notice shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such Claim Notice to respond in writing to such Direct Claim. During such thirty (30) day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have accepted such claim.
(ii) After the giving of any Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Section 9.1 shall be determined: (i) by this Agreement; (ii) by a claim determination of a court of competent jurisdiction in accordance with Section 10.16; or demand is (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree in writing (a “Determination”). All amounts due to the Indemnified Party shall be paid within ten (10) Business Days after such Determination pursuant to Section 9.5. (iii) An Indemnified Party shall notify the Indemnifying Party promptly in writing, and in reasonable detail, of any Legal Proceeding made against an Indemnitee by any Person who is not a party to this Agreement (and who is not or an Affiliate of a party to this Agreement, or a representative of the foregoing against the Indemnified Party (a “Third Party Claim”) as with respect to which a party (the "Indemnifying Party") may be Party is obligated to provide indemnification pursuant under this Agreement. Notwithstanding the foregoing, should a party be physically served with a complaint with regard to this Agreement (a "Third Party Claim"), such Indemnitee will the Indemnified Party must notify the Indemnifying Party in writing, and in reasonable detail, with a copy of the Third Party Claim reasonably promptly complaint within ten (10) calendar days after becoming aware receipt thereof and shall deliver a copy of such Third complaint to the Indemnifying Party Claimwithin ten (10) calendar days after the receipt of such complaint; provided, however, that the failure of any Indemnified Party to give any such notification will notice shall not affect the indemnification provided hereunder such Indemnified Party’s rights under this Section 9.1 except and only to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by failure materially prejudices the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed Such notice by the Indemnitee for any period during which Indemnified Party shall describe the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party ClaimClaim in reasonable detail, the Indemnifying Party will promptly supply to the Indemnitee shall include copies of all correspondence material written evidence thereof and documents relating to or in connection with such Third Party Claim and keep shall indicate the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (includingestimated amount, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will if reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expensespracticable, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise Loss that has been or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given sustained by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureIndemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Trulieve Cannabis Corp.), Merger Agreement (Trulieve Cannabis Corp.)
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against an IMS Indemnitee or a ST Indemnitee (each, an “Indemnitee”) by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement“Third Party Claim”) as to which a party (the "Indemnifying Party") may be obligated such Indemnitee is entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the “Indemnifying Party Party”) in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within fifteen (15) business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; providedPROVIDED, howeverHOWEVER, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five (5) business days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; PROVIDED that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within thirty 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as thereof; PROVIDED that such Indemnitee shall have the Indemnifying Party diligently conducts right to employ counsel to represent such defense; provided thatIndemnitee if, if (i) in any such Indemnitee's ’s reasonable judgment judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request which would make representation of the Indemnitee) of both such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoparties by one counsel inappropriate, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that such event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expense, including reasonable legal fees provided Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate . If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing responsibility for a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's ’s prior written consent; PROVIDED, HOWEVER, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will not be unreasonably withheld).
(d) Any claim on account agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; PROVIDED, HOWEVER, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party’s indemnification obligation with respect to such Third Party Claim shall have demonstrated not exceed the amount that it has been actually prejudiced would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as a result provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such failureIndemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement, Distribution Agreement (Dendrite International Inc)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party pursuant to the provisions of Section 9.1 or 9.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee by any Person who is not a indemnifying party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")the provisions of Section 9.1 or 9.2, promptly notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of commencement thereof; but the omission to so notify such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party indemnifying party will not relieve the Indemnifying Party it from any liability which it may have to the indemnified party otherwise than hereunder. In case such Indemnitee under this Agreementaction is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, except the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the Indemnifying Party defense thereof, with counsel satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have demonstrated reasonably concluded that there may be legal defenses available to it has been actually prejudiced as which are different from or additional to those available to the indemnifying party, or if there is a result conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such failureaction on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Section 9.1 or 9.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (a) the indemnified party shall have employed counsel in accordance with the proviso of the preceding sentence, (b) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (c) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release from all liability in repsect to such claim or litigation.
Appears in 2 contracts
Sources: Merger Agreement (Cognex Corp), Merger Agreement (Cognex Corp)
Procedures for Indemnification. (ai) If a an Indemnitee shall receive notice or otherwise learn of the assertion of any claim or demand is made against an Indemnitee commencement of any proceeding (including any governmental investigation) by any Person a person who is not a party to this Agreement (and who is not an or any Affiliate of either party) (a party to this Agreement"Third-Party Claim") as with respect to which a party (the "an Indemnifying Party") Party may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the shall give such Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably written notice thereof promptly after becoming aware of such Third-Party Claim setting forth the particulars as to such claim or proceeding in reasonable detail; PROVIDED that the failure of any Indemnitee to give notice as provided in this Section 4.4(a) shall not relieve the related Indemnifying Party of its obligations under this Article IV, unless such Indemnifying Party is actually prejudiced by such failure to give notice and then only to the extent of such actual prejudice.
(ii) An Indemnifying Party may, to the extent it wishes within thirty days of receipt of notice of a Third Party claim and at its cost and expense, elect to defend or to seek to settle or compromise any Third-Party Claim; provided, however, PROVIDED that failure to give any the Indemnitee may participate in such notification will not affect the indemnification provided hereunder except to the extent the settlement or defense through its chosen counsel at its sole cost and expense. After notice from an Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the such Indemnifying Party will shall not be liable to the such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by the such Indemnitee in connection with the defense thereof as long as thereof; PROVIDED that if the defendants in any such Third-Party Claim include both the Indemnifying Party diligently conducts such defense; provided that, if (i) and one or more Indemnitees and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee will Indemnitees shall have the right to employ separate counsel to represent such Indemnitee Indemnitees and in that event the reasonable fees and expenses of such separate counsel will (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If ; PROVIDED FURTHER if and to the Indemnifying Party assumes extent that there is a conflict of defenses or positions among the defense of any such Third Party ClaimIndemnitees, each Indemnitee will the Indemnitees shall have the right to retain such number of additional separate counsel, reasonably satisfactory to the Indemnifying Party, as is reasonably necessary to avoid such conflicts, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional separate counsel; PROVIDED FURTHER that the Indemnitee may participate in the settlement or defense thereof and to employ counsel, at its own expense, separate from the of a Third-Party Claim through counsel employed chosen by the Indemnifying Party. The Indemnifying Party will be liable for such Indemnitee if the fees and expenses of such counsel employed shall be borne by the Indemnitee for any period during which the such Indemnitee. If an Indemnifying Party has failed elects not to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of responsibility for defending a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, such Indemnitee may defend or seek to compromise or settle such Third-Party Claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement. Notwithstanding the foregoing, the Indemnifying Party will promptly supply to the Indemnitee copies shall not be liable for any settlement of all correspondence and documents relating to or in connection with such Third any Third-Party Claim and keep effected without its written consent. The Indemnifying Party shall not, except with the Indemnitee fully informed consent of all developments relating to the Indemnitee, (i) enter into any such settlement that does not include as an unconditional term thereof the giving by the person or in connection with persons asserting such Third Third-Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as all Indemnitees an unconditional release from all liability with respect to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third such Third-Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof or (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(cii) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(db) Any claim on account of Damages which a Loss that does not involve result from a Third Third-Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Such Indemnifying Party shall have demonstrated a period of thirty (30) days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such thirty-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such thirty-day period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such party under this Agreement or under applicable law (except as provided in the ADR Agreement).
(c) In addition to any adjustments required pursuant to Section 4.3, if the amount of any Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction that it has been actually prejudiced as a result received by the Indemnitee, less any expenses properly incurred in connection therewith, shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(d) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall have all rights of subrogation and shall stand in the place of such failureIndemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(e) Notwithstanding anything to the contrary herein or in the Other Agreements, the foregoing indemnification provisions and procedures shall apply to any other indemnification agreements herein or in the Other Agreements.
Appears in 2 contracts
Sources: Distribution Agreement (Consolidated Freightways Corp), Distribution Agreement (Consolidated Freightways Corp)
Procedures for Indemnification. (a) Procedures for Indemnification of Third Party Claims (as defined below) shall be as follows:
(i) If a claim or demand is made against an Indemnitee shall receive notice or otherwise learn of the assertion by any Person who is not a party to this Agreement (and who is not or an Affiliate thereof) or to any Ancillary Agreement of a party to this Agreementclaim or of the commencement by any such Person of any Action (a "Third Party Claim") as with respect to which a party (the "an Indemnifying Party") Party may be obligated to provide indemnification pursuant to Section 5.01, Section 5.02, or any other Section of this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the shall give such Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably written notice thereof promptly after becoming aware of such Third Party Claim; providedprovided that the failure of any Indemnitee to give notice as provided in this Section 5.04(a)(i) shall not relieve the related Indemnifying Party of its obligations under this Article V, however, except where and solely to the extent that such Indemnifying Party is actually and materially prejudiced by such failure to give notice. Such notice shall describe the Third Party Claim in reasonable detail and, if ascertainable, shall indicate the amount (estimated if necessary) of the Loss that has been or may be sustained by such Indemnitee.
(ii) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, any Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.04(a)(i) (or sooner, if the nature of such notification will not affect the indemnification provided hereunder except to the extent Third Party Claim so requires), the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify notify the Indemnitee therefor, of its election whether the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the responsibility for defending such Third Party Claim, which election shall specify any reservations or exceptions. After notice from an Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect an Indemnitee of its election to assume the defense of a Third Party Claim, the such Indemnifying Party will shall not be liable to the such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance in writing by the Indemnifying Party) subsequently incurred by the such Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided that, if (i) the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and, in any Indemnitee's reasonable judgment judgment, a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim or (ii) any if the Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of shall have assumed responsibility for such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification claim with respect theretoany reservations or exceptions, such Indemnitee will Indemnitees shall have the right to employ separate counsel to represent such Indemnitee and Indemnitees and, in that event event, the reasonable fees and expenses of such separate counsel will (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If the an Indemnifying Party assumes elects not to assume responsibility for defending a Third Party Claim or fails to notify an Indemnitee of its election as provided in this Section 5.04(a)(ii), such Indemnitee may defend or (subject to the defense remainder of any this Section 5.04(a)(ii)) seek to compromise or settle such Third Party Claim. Notwithstanding the foregoing, each neither an Indemnifying Party nor an Indemnitee will have may settle or compromise any claim over the right objection of the other; provided, however, that consent to participate in settlement or compromise shall not be unreasonably withheld. Neither an Indemnifying Party nor an Indemnitee shall consent to entry of any judgment or enter into any settlement of any Third Party Claim which does not include as an unconditional term thereof the defense thereof and to employ counsel, at its own expense, separate from the counsel employed giving by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed claimant or plaintiff to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (includingsuch Indemnitee, in the case of a failure consent or settlement by an Indemnifying Party, or to the Indemnifying Party, in the case of a consent or settlement by the Indemnitee, a written release from all liability in respect to such Third Party Claim.
(iii) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third Party Claim, the related Indemnitee shall make available to such Indemnifying Party any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, settlement or compromise, and shall otherwise cooperate in the defense, settlement or compromise of such Third Party Claims, subject to the establishment of appropriate confidentiality arrangements which are reasonably satisfactory to MAPICS and Marcam Solutions.
(iv) Notwithstanding anything else in this Section 5.04 to the contrary, if an Indemnifying Party notifies the related Indemnitee in writing of such Indemnifying Party's desire to settle or compromise a Third Party Claim on the basis set forth in such notice (provided that such settlement or compromise includes as an unconditional term thereof the giving by the claimant or plaintiff of a written release of the Indemnitee from all liability in respect thereof) and the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of accept any such settlement or compromise, such Indemnitee may continue to contest such Third Party Claim, free of any participation by such Indemnifying Party, at such Indemnitee's sole expense. In such event, the obligation of such Indemnifying Party will promptly supply to the such Indemnitee copies of all correspondence and documents relating with respect to or in connection with such Third Party Claim shall be equal to (i) the costs and keep the expenses of such Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing prior to the date such Indemnifying Party notifies such Indemnitee on request updates and summaries as of the offer to settle or compromise to the status thereof). If extent such costs and expenses are otherwise indemnifiable hereunder, plus (ii) the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at lesser of (A) the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry amount of any judgmentoffer of settlement or compromise which such Indemnitee declined to accept and (B) the actual out-of-pocket amount such Indemnitee is obligated to pay subsequent to such date as a result of any Third Party Claim without the such Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse continuing to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with pursue such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(db) Any claim on account of Damages a Loss which does not involve result from a Third Party Claim shall be asserted by written notice given by the Indemnitee to the related Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Such Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result period of 30 days after the receipt of such failurenotice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 30-day period or rejects such claim, in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such party under this Agreement or under applicable law.
(c) In addition to any adjustments required pursuant to Section 5.03, if the amount of any Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by the Indemnitee to the Indemnifying Party.
(d) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner and, at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
Appears in 2 contracts
Sources: Distribution Agreement (Marcam Solutions Inc), Distribution Agreement (Marcam Corp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Distribution Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Distribution Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof except as long as the Indemnifying Party diligently conducts such defense; otherwise expressly provided that, if (i) for in any Indemnitee's reasonable judgment a conflict Section 2.9 of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partythis Distribution Agreement. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, ii) in the case event the Indemnitee reasonably determines, based on the advice of its counsel that there shall exist a failure conflict of interest between the Indemnitee and the Indemnifying Party or that there are defenses available to the Indemnitee that are not available to the Indemnifying Party, the effect of which shall be to make it impractical for the Indemnitee and the Indemnifying Party to acknowledge its indemnification obligation as aforesaid)be jointly represented by the same counsel, in which case the Indemnifying Party shall be liable for the fees and expenses of one counsel for all Indemnitees in any single or series of related Actions. If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate prosecution thereof. If the Indemnifying Party to pay the full amount acknowledges in writing liability for indemnification of Damages in connection with such a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.C-13
Appears in 2 contracts
Sources: Agreement and Plan of Distribution (New Grancare Inc), Agreement and Plan of Distribution (New Grancare Inc)
Procedures for Indemnification. (a) If a claim there occurs an event that either party asserts is an indemnifiable event pursuant to Section 5.1 or demand is made against an Indemnitee by any Person who is not a 5.2, the party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party seeking indemnification (the "Indemnifying Party"“Indemnitee”) may be shall promptly provide notice (the “Notice of Claim”) to the other party or parties obligated to provide indemnification pursuant (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to this Agreement (a "Third Party Claim"), such Indemnitee will notify any Liability of the Indemnifying Party in writinghereunder, and in reasonable detail, the failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. In case any such action shall be brought against any Indemnitee and it shall provide a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnitee of such Third election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnitee hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnitee, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if the Indemnitee reasonably believes that counsel for the Indemnifying Party cannot represent both the Indemnitee and the Indemnifying Party because such representation would be reasonably likely to result in a conflict of interest, then the Indemnitee shall have the right to defend, at the sole cost and expense of the Indemnifying Party, such action by all appropriate proceedings. The Indemnitee agrees to reasonably cooperate with the Indemnifying Party and its counsel in the defense against any such asserted liability. In any event, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the written consent of each Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of the Indemnitee from all Liability in respect to such claim or litigation or that does not solely require the payment of money damages by the Indemnifying Person. The Indemnifying Party agrees to afford the Indemnitee and its counsel the opportunity to be present at, and to participate in, conferences with all Persons, including any Governmental or Regulatory Authority, asserting any Claim against the Indemnitee or conferences with representatives of or counsel for such Persons. In no event shall the Indemnifying Party, without the written consent of the Indemnitee, settle any Claim on terms that provide for (i) a criminal sanction against the Indemnitee or (ii) injunctive relief affecting the Indemnitee.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party shall have 20 calendar days (or such shorter period as may be appropriate under the circumstances) to contest its indemnification obligation with respect to such claim, or the amount thereof, by written notice to the Indemnitee (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Loss in respect thereof has not yet been determined, such 20 day period in respect of, but only in respect of the amount of the Loss, shall not commence until a further written notice (the “Notice of Liability”) has been sent or delivered by the Indemnitee to the Indemnifying Party setting forth the amount of the Loss incurred by the Indemnitee that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or bases for the objection of the Indemnifying Party to the claim, and if the objection relates to the amount of the Loss asserted, the amount, if any, that the Indemnifying Party believes is due the Indemnitee, and any undisputed amount shall be promptly paid over to the Indemnitee. If no such Contest Notice is given within such 20 day period, the obligation of the Indemnifying Party to pay the Indemnitee the amount of the Loss set forth in the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(c) If the Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnitee, without waiving its right to indemnification, may assume, at the cost of the Indemnifying Party, the defense and settlement of such Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent (i) the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation be permitted to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate join in the defense thereof and settlement of such Claim and to employ counsel, counsel at its own expense, separate from the counsel employed by (ii) the Indemnifying Party. The Indemnifying Party will be liable for shall cooperate with the fees Indemnitee in the defense and expenses settlement of counsel employed such Claim in any manner reasonably requested by the Indemnitee for any period during which and (iii) the Indemnifying Party has failed to assume Indemnitee shall not settle such Claim without soliciting the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure views of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)giving them due consideration.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the The Indemnifying Party from whom such indemnification is soughtshall make any payment required to be made under this Article in cash and on demand. The failure Any payments required to be paid by any Indemnitee so to notify the an Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this AgreementArticle that are not paid within five business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, except to the extent that and the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result pay to the Indemnitee, immediately upon demand, interest at the rate of 10% per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such failuredelinquent sums, which interest shall be considered to be Losses of the Indemnitee.
Appears in 2 contracts
Sources: Contribution Agreement (Martin Midstream Partners Lp), Contribution Agreement (Martin Midstream Partners Lp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by No party shall be liable for any Person who is not a party to Claim for indemnification under this Agreement (and who is not an Affiliate Article V unless written notice of a Claim for indemnification is delivered by the party to this Agreement) as to which a party seeking indemnification (the "“Indemnified Party”) to the party from whom indemnification is sought (the “Indemnifying Party"”) prior to the expiration of the applicable survival period, if any, set forth in Section 6.3. If any third party notifies the Indemnified Party with respect to any matter which may be obligated give rise to provide a Claim for indemnification pursuant to this Agreement (a "“Third Party Claim")”) against the Indemnifying Party under this Article V, such Indemnitee will then the Indemnified Party shall notify the Indemnifying Party promptly thereof in writing, writing and in reasonable detail, any event within 30 days after receiving notice from a third party; provided that no delay on the part of the Third Indemnified Party Claim reasonably promptly after becoming aware of such Third in notifying the Indemnifying Party Claim; provided, however, that failure to give shall relieve the Indemnifying Party from any such notification will not affect the indemnification provided obligation hereunder except to the extent the Indemnifying Party is materially prejudiced thereby. All notices given pursuant to this Section 5.3 shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a describe with reasonable specificity the Third Party Claim is made against an Indemnitee and the basis of the Indemnified Party’s Claim for indemnification. Upon the Indemnified Party giving notice of the Third Party Claim to the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforParty, the Indemnifying Party will shall be entitled to participate therein and, to the extent desired, to assume the defense thereof (at the expense with counsel of its choice as long as the Indemnifying Party) with counsel selected Party agrees in writing that the Indemnified Party is entitled to indemnification by the Indemnifying Party and reasonably satisfactory to the Indemniteefor such action. Should If the Indemnifying Party so elect provides the Indemnified Party with notice of its determination to assume the defense of a such Third Party Claim, the Indemnified Party may nevertheless participate in (but not control) such defense, but the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof as long as of the Third Party Claim, other than reasonable costs of investigation, unless the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect does not actually assume the defense thereof following notice of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyelection. If the Indemnifying Party assumes does not assume the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply shall have the right to undertake the Indemnitee copies defense of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at by counsel or other representatives of its own choosing, on behalf of and for the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees account and expenses, risk of the Indemnifying Party).
(c) Notwithstanding anything . Neither the Indemnified Party nor the Indemnifying Party shall consent to the contrary contained herein, no Indemnifying Party will consent to entry or any settlement, compromise judgment or discharge (including the consent to entry of enter into any judgment) settlement of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse that might give rise to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release liability of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with other party under this Article V without such Third Party Claimparty’s consent, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld), conditioned or delayed.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hyperion Energy, Inc.), Stock Purchase Agreement (Hyperion Energy, Inc.)
Procedures for Indemnification. (a) Procedures for Indemnification of Third Party Claims shall be as follows:
(i) If a claim or demand is made against an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including, without limitation, any Person governmental entity) who is not a party to this Agreement (and who is not or an Affiliate thereof) or to any Ancillary Agreement of any claim or of the commencement by any such Person of any Action (a party to this Agreement"Third Party Claim") as with respect to which a party (the "an Indemnifying Party") Party may be obligated to provide indemnification pursuant to Section 4.01, Section 4.02, or any other Section of this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the shall give such Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably written notice thereof promptly after becoming aware of such Third Party Claim; provided, however, provided that the failure of any Indemnitee to give any such notification will notice as provided -------- in this Section 4.04(a)(i) shall not affect relieve the indemnification provided hereunder related Indemnifying Party of its obligations under this Article IV, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third Party Claim in reasonable detail and, if ascertainable, shall indicate the amount (estimated if necessary) of the Loss that has been or may be sustained by such Indemnitee.
(ii) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party's own expense and by such Indemnifying Party's own counsel, any Third Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 4.04(a)(i) (or sooner, if the nature of such Third Party Claim so requires), the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify notify the Indemnitee therefor, of its election whether the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the responsibility for defending such Third Party Claim, which election shall specify any reservations or exceptions. After notice from an Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect an Indemnitee of its election to assume the defense of a Third Party Claim, the such Indemnifying Party will shall not be liable to the such Indemnitee under this Article IV for any legal or other expenses (except expenses approved in advance by the Indemnifying Party) subsequently incurred by the such Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided that, -------- if (i) the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in any Indemnitee's reasonable judgment a conflict of interest between one or more of such Indemnitees and such Indemnifying Party exists in respect of such claim or (ii) any if the Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of shall have assumed responsibility for such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification claim with respect theretoany reservations or exceptions, such Indemnitee will Indemnitees shall have the right to employ separate counsel to represent such Indemnitee Indemnitees and in that event the reasonable fees and expenses of such separate counsel will (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If the an Indemnifying Party assumes elects not to assume responsibility for defending a Third Party Claim, or fails to notify an Indemnitee of its election as provided in this Section 4.04(a)(ii), such Indemnitee may defend or (subject to the defense remainder of any this Section 4.04(a)(ii)) seek to compromise or settle such Third Party Claim. Notwithstanding the foregoing, each neither an Indemnifying Party nor an Indemnitee will have may settle or compromise any claim over the right objection of the other; provided, however, that consent to participate in settlement or compromise shall not be unreasonably withheld. Neither an Indemnifying Party nor an Indemnitee shall consent to entry of any judgment or enter into any settlement of any Third Party Claim which does not include as an unconditional term thereof the defense thereof and to employ counsel, at its own expense, separate from the counsel employed giving by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed claimant or plaintiff to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (includingsuch Indemnitee, in the case of a failure consent or settlement by an Indemnifying Party, or the Indemnifying Party, in the case of a consent or settlement by the Indemnitee, of a written release from all liability in respect to such Third Party Claim. 16
(iii) If an Indemnifying Party chooses to defend or to seek to compromise or settle any Third Party Claim, the related Indemnitee shall make available to such Indemnifying Party any personnel or any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense, settlement or compromise, and shall otherwise cooperate in the defense, settlement or compromise of such Third Party Claims, subject to the establishment of appropriate confidentiality arrangements which are reasonably satisfactory to Premark and Tupperware.
(iv) Notwithstanding anything else in this Section 4.04 to the contrary, if an Indemnifying Party notifies the related Indemnitee in writing of such Indemnifying Party's desire to settle or compromise a Third Party Claim on the basis set forth in such notice (provided that such settlement or compromise includes as an unconditional term thereof the giving by the claimant or plaintiff of a written release of the Indemnitee from all liability in respect thereof) and the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of accept any such settlement or compromise, such Indemnitee may continue to contest such Third Party Claim, free of any participation by such Indemnifying Party, at such Indemnitee's sole expense. In such event, the obligation of such Indemnifying Party will promptly supply to the such Indemnitee copies of all correspondence and documents relating with respect to or in connection with such Third Party Claim shall be equal to (i) the costs and keep the expenses of such Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing prior to the date such Indemnifying Party notifies such Indemnitee on request updates and summaries as of the offer to settle or compromise (to the status thereof). If extent such costs and expenses are otherwise indemnifiable hereunder) plus (ii) the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at lesser of (A) the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry amount of any judgmentoffer of settlement or compromise which such Indemnitee declined to accept and (B) the actual out-of-pocket amount such Indemnitee is obligated to pay subsequent to such date as a result of any Third Party Claim without the such Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse continuing to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with pursue such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(db) Any claim on account of Damages a Loss which does not involve result from a Third Party Claim shall be asserted by written notice given by the Indemnitee to the related Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Such Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result period of 30 days after the receipt of such failurenotice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such party under this Agreement or under applicable law. (c) In addition to any adjustments required pursuant to Section 4.03, if the amount of any Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by the Indemnitee to the Indemnifying Party.
Appears in 2 contracts
Sources: Distribution Agreement (Premark International Inc), Distribution Agreement (Tupperware Corp)
Procedures for Indemnification. (a) An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (other than a Third-Party Claim which shall be governed by Section 9.2(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the Party that is or may be required pursuant to this Article IX to make such indemnification (the “Indemnifying Party Party”) in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) calendar days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If a Third An Indemnifying Party Claim shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the applicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is made against entitled to indemnification under this Article IX to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. After such notice from an Indemnifying Party to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 9.2, in the event that (i) an Indemnifying Party will elects not to assume responsibility for defending a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim or (v) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material assets, such Indemnitee(s) shall be liable for entitled to assume the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) No Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to assume the defense thereof or failed of the Third-Party Claim, it shall not be a defense to diligently conduct any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 11.3, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by for any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party monetary or compensatory damages or Losses resulting from any liability which it may have to such Indemnitee under breach of this Agreement, except and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the extent that the foregoing other than under this Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 2 contracts
Sources: Employee Matters Agreement (Netscout Systems Inc), Employee Matters Agreement (Netscout Systems Inc)
Procedures for Indemnification. (a) If No party hereto shall be liable for any claim for indemnification under this ARTICLE X unless written notice of a claim or demand for indemnification is made against an Indemnitee delivered by any Person who is not a the party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party seeking indemnification (the "“Indemnified Party”) to the party from whom indemnification is sought (the “Indemnifying Party"”) prior to the expiration of any applicable survival period set forth in Section 10.1 (in which event the claim shall survive until resolved). If any third party notifies the Indemnified Party with respect to any matter which may be obligated give rise to provide a claim for indemnification pursuant to this Agreement (a "“Third Party Claim")”) against the Indemnifying Party under this ARTICLE X, such Indemnitee will then the Indemnified Party shall notify the Indemnifying Party reasonably promptly thereof in writing; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder except to the extent that the Indemnifying Party is actually and materially prejudiced thereby. All notices given pursuant to this Section 10.6(a) shall describe with reasonable specificity the nature of the claim, the amount of the claim (to the extent then known) and the basis of the Indemnified Party’s claim for indemnification.
(b) Following receipt of notice in accordance with Section 10.6(a) (other than a notice of a Third Party Claim against the Indemnified Party, in which case Section 10.6(c) below shall apply), the Indemnifying Party shall have thirty (30) days from the date it receives such notice (the “Dispute Period”) to make such investigation of the claim as the Indemnifying Party deems necessary or desirable. For purposes of such investigation, the Indemnified Party shall make available to the Indemnifying Party all the material information related to such claim relied upon by or in possession or control of, the Indemnified Party. If the Indemnifying Party disagrees with the validity or amount of all or a portion of such claim made by the Indemnified Party, the Indemnifying Party shall deliver to the Indemnified Party written notice thereof (the “Dispute Notice”) prior to the expiration of the Dispute Period. If no Dispute Notice is received by the Indemnified Party within the Dispute Period or the Indemnifying Party provides notice that it does not have a dispute with respect to such claim, such claim shall be deemed approved and consented to by the Indemnifying Party (such claim, an “Approved Indemnification Claim”). If a Dispute Notice is received by the Indemnified Party within the Dispute Period and the Indemnified Party and the Indemnifying Party do not agree to the validity and/or amount of such disputed claim, no payment shall be made until such disputed claim is resolved, whether by adjudication of such matter, agreement between the Indemnified Party and the Indemnifying Party, or otherwise (and upon any such resolution, such claim shall be deemed to be an Approved Indemnification Claim). Subject to Section 10.4 (including, without limitation, any provision thereof that requires that the Purchaser Indemnified Parties first satisfy Losses for which the Purchaser Indemnified Parties are entitled to indemnification against the R&W Insurance Policy and second satisfy the amount of such Losses that are not insured or covered by the R&W Insurance Policy against all or any portion of the Indemnification Escrow Amount then being held in escrow pursuant to, and in reasonable detailaccordance with, this Agreement and the Escrow Agreement), each Approved Indemnification Claim shall be paid no later than five (5) Business Days after the date on which the subject claim became an Approved Indemnification Claim, in each case by wire transfer of immediately available funds to the account designated in writing by the party entitled to such payment.
(c) After the Indemnified Party has given notice of a Third Party Claim reasonably promptly after becoming aware to the Indemnifying Party pursuant to Section 10.6(a), the Indemnifying Party may, at its, his or her election, undertake and conduct the defense of such Third Party Claim; provided that the Indemnifying Party fully acknowledges in writing its indemnification obligations to the Indemnified Party. In such case, the Indemnified Party may continue to participate in the defense of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder (except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(botherwise provided below in this Section 10.6 with respect to disputes related to Taxes) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of following the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume ’s assumption of the defense of a such Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any all legal or other expenses subsequently incurred by the Indemnitee in connection with Indemnified Party shall be borne by the defense thereof as long as Indemnified Party unless the Indemnified Party reasonably concludes that the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying and the Indemnified Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification have conflicting interests available with respect theretoto such legal proceeding, such Indemnitee will have in which case the right to employ separate counsel to represent such Indemnitee and in that event Indemnified Party shall be indemnified for the reasonable fees and expenses of such separate counsel will to the Indemnified Party (including local counsel). With respect to Third Party Claims related to Taxes, the Indemnifying Party shall be paid by such Indemnifying Partyresponsible for making all deposits or down payments required with respect to the defense of the Third Party Claim. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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 shall not settle or consent to judgment with respect to such Third Party Claim without the written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. The Notwithstanding anything to the contrary, the Indemnifying Party will shall not be liable for entitled to assume the fees administration and expenses defense of counsel employed any Third Party Claim made by any customer or supplier of the Indemnitee for Acquired Companies or any period during which of their Subsidiaries. If (i) the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, Claim within twenty (20) days of the Indemnified Party’s delivery of notice of such Third Party Claim to the Indemnifying Party will promptly supply Party, (ii) the aggregate amount reasonably expected to the Indemnitee copies of all correspondence and documents relating to or be incurred in connection with such Third Party Claim and keep all other outstanding claims on the Indemnitee fully informed Indemnification Escrow Account exceeds the sum of all developments relating (1) the maximum amount of coverage under the R&W Insurance Policy plus (2) the amount remaining in the Indemnification Escrow Account, (iii) such Third Party Claim involves criminal or quasi-criminal allegations or (iv) the Third Party Claim includes a claim for injunctive relief, then the Indemnified Party shall have the right to assume the defense of such Third Party Claim. The Indemnified Party and the Indemnifying Party shall render to each other such assistance as may reasonably be required of each other in order to ensure proper and adequate defense of any Third Party Claim subject to this Section 10.6. To the extent that the Indemnified Party or the Indemnifying Party does not participate in connection the defense of a particular Third Party Claim, the party so proceeding with such Third Party Claim (including, without limitation, providing shall keep the other party informed of all material developments and events relating to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a such Third Party Claim, at the request of the Indemnifying . No Indemnified Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will shall settle or consent to any settlement, compromise or discharge (including the consent judgment with respect to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount consent of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (, which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by , conditioned or delayed. In the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent event that the Indemnifying Party has consented to any settlement or consented to any judgment and except as otherwise provided in such settlement or judgment, such Indemnifying Party shall not have demonstrated that it has been actually prejudiced as a result any power or authority to object to any claim by any Indemnified Person under and in accordance with this ARTICLE X, including against the Indemnification Escrow Account, if applicable, for indemnity in the amount of such failuresettlement or judgment.
Appears in 2 contracts
Sources: Equity Purchase Agreement, Equity Purchase Agreement (Gsi Group Inc)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) The party claiming the indemnification (the “Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party”) of any claim whether between the parties or brought by a third party against the Indemnified Party, specifying (i) the factual basis for such claim, and (ii) the amount of the claim. If a claim relates to an action, suit, or demand is made proceeding filed by a third party against an Indemnitee the Indemnified Party such notice shall be given by any Person who is not a party the Indemnified Party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly within ten (10) days after becoming aware written notice of such Third Party Claim; providedaction, howeversuit, that failure to give any such notification will not affect the indemnification provided hereunder except or proceeding shall have been given to the extent Indemnified Party.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have demonstrated that it has been actually prejudiced thirty (30) days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said thirty (30) day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee thereforsuch notice, the Indemnifying Party will shall immediately pay to the Indemnified Party the full amount of the claim; provided, that the amount held in escrow to secure Sellers’ indemnification of Buyer shall be paid in satisfaction of any claim payable by Sellers until that amount is exhausted (if it is).
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any such Third third-party claim, the Indemnified Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party from whom such indemnification is sought. The failure by does not elect to assume control or otherwise participate in the defense of any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementthird-party claim, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result be bound by the results obtained in good faith by the Indemnified Party with respect to such claim.
(f) The indemnification rights provided in Sections 12.2 and 12.3 hereof shall extend to the shareholders, directors, officers and Affiliates of the Indemnified Party, although for the purpose of the procedures set forth in this Section 12.4, any indemnification claims by such failureparties shall be made by and through the Indemnified Party.
Appears in 2 contracts
Sources: Merger Agreement (Hadron Inc), Merger Agreement (Analex Corp)
Procedures for Indemnification. (a) If Any Person (the “Indemnified Party”) may assert a claim for indemnification under Section 7.2 (a) or demand is made against an Indemnitee (b), as the case may be, by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party providing written notice (the "“Notice”) to the party from which indemnification is sought (the “Indemnifying Party"”), stating the amount of Damages, if known, and the nature and basis of such claim.
(b) In the case of Damages that arise or may arise by reason of any Third-Party claim, promptly after receipt by an Indemnified Party of written notice of the assertion of any claim or the commencement of any action with respect to any matter in respect of which indemnification may be obligated sought hereunder, the Indemnified Party shall give Notice to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writingand shall thereafter keep the Indemnifying Party reasonably informed with respect thereto, and in reasonable detail, provided that failure of the Third Indemnified Party Claim reasonably promptly to give the Indemnifying Party prompt notice as provided herein shall not relieve the Indemnifying Party of any of its obligations hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. In case any such claim is made or action is brought against any Indemnified Party, the Indemnifying Party shall be entitled to assume the defense thereof, by written notice to the Indemnified Party within thirty (30) days after becoming aware receipt of the Notice stating its intent to do so and acknowledging its potential liability to the Indemnified Party hereunder. If the Indemnifying Party assumes the defense of such Third Party Claimclaim or action, it shall have the right to settle such claim or action; provided, however, that failure it shall not settle such claim or action without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed) if such settlement (i) does not include as an unconditional term thereof the giving by the claimant or the plaintiff of a release of the Indemnified Party from all liability with respect to give such claim or action or (ii) involves the imposition of equitable remedies or the imposition of any material obligations on such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Indemnified Party shall have demonstrated that it has been actually prejudiced as a result of other than financial obligations for which such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Indemnified Party will be entitled to assume the defense thereof (at the expense indemnified hereunder. Following delivery of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect notice of its intention to assume the defense of a Third Party Claimany claim or action hereunder, the Indemnifying Party will shall not be liable to the Indemnitee hereunder for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof as long as thereof; provided, however, that if the defendants in any action shall include both an Indemnifying Party and any Indemnified Party and such Indemnified Party shall have reasonably concluded that counsel selected by the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment has a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request because of the Indemnitee) availability of different or additional defenses to such Indemnifying Indemnified Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will Indemnified Party shall have the right to employ separate counsel to represent participate in the defense of such Indemnitee and in action on its behalf, at the expense of the Indemnifying Party; provided, further, however, that event the reasonable fees and Indemnifying Party shall not be obligated to pay the expenses of such more than one separate counsel will be paid by such Indemnifying Partyfor all Indemnified Parties, taken together. If the Indemnifying Party assumes chooses to assume the defense of any claim or action pursuant hereto, the Indemnified Party shall cooperate in such Third defense, which cooperation shall include the retention and the provision to the Indemnifying Party Claimof records and information which are reasonably relevant to such defense, each Indemnitee and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder, including providing such employees to serve as witnesses.
(c) If the Indemnifying Party fails to notify the Indemnified Party of its desire to assume the defense of any claim or action within the prescribed period of time, or shall notify the Indemnified Party that it will have not assume the defense hereof, then the Indemnified Party may assume the defense of such claim or action, in which event it may do so acting in good faith, and the Indemnifying Party shall be bound by any determination made in any such action, provided, however, that the Indemnified Party shall not be permitted to settle any such action without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. No such determination or settlement shall affect the right of the Indemnifying Party to dispute the Indemnified Party’s claim for indemnification hereunder. The Indemnifying Party shall be permitted to participate in the defense thereof of such claim or action and to employ counsel, counsel at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account With respect to claims solely between the parties, following receipt of Damages which does not involve notice from the Indemnified Party of a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementclaim, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced thirty (30) days to make such investigation of the claim as a result the Indemnifying Party deems necessary or desirable. For the purposes of such failureinvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and its authorized Representatives the information relied upon by the Indemnified Party to substantiate the claim. With respect to claims for Uncapped Damages, if the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of the thirty-day period (or any mutually agreed upon extension thereof) to the validity and amount of such claim, the Indemnifying Party shall immediately pay to the Indemnified Party the agreed-to amount of such claim, and if the Indemnified Party and the Indemnifying Party do not agree within such thirty-day period (or any mutually agreed upon extension thereof), the Indemnified Party may seek appropriate remedy, subject to the terms hereof.
Appears in 2 contracts
Sources: Master Reciprocal Settlement Agreement (Adelphia Communications Corp), Global Settlement Agreement (Adelphia Communications Corp)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a The party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party seeking indemnification under Section 12 hereof (the "“Indemnified Party”) agrees to give prompt notice to the Party against whom indemnity is sought (the “Indemnifying Party"”) of the assertion of any claim, or the commencement of any suit, action or proceeding in respect of which indemnity may be obligated sought hereunder; provided that the failure to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writingshall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. The Indemnifying Party shall not be liable under this Section 12.2 for any settlement of Third Party Claims (as defined below) effected without its consent and in reasonable detailviolation of Section 12.2(b) hereof.
(b) The Indemnifying Party shall be entitled to participate in the defense of any claim asserted by any third party and arising from the breach of obligations under this Agreement and/or any other Transaction Agreement (“Third Party Claim”) and, subject to the limitations set forth in this Section 12.2, shall be entitled to control and appoint lead counsel for such defense, in each case at its expense, provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligations for Loss resulting from such Third Party Claims as provided under this Section 12.2. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled or obligated to assume or maintain control of the defense of any Third Party Claim nor pay the fees and expense of counsel retained by the Indemnified Party if (i) the Third Party Claim reasonably promptly after becoming aware relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party and/or willful misconduct or gross negligence of the Indemnified Party, or (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of Section 12.2(b), the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld or delayed) before entering into any settlement of such Third Party Claim; provided.
(d) The Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ one law firm as separate counsel of its choice for such purpose. The reasonable fees and expenses of such separate counsel shall be borne by the Indemnified Party, however, provided that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event pay the reasonable fees and expenses of such separate counsel will be paid counsel, (i) incurred by such Indemnifying Party. If the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of any the Third Party Claim and the Indemnifying Party is not otherwise required to assume control of the defense of such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses or (ii) if representation of counsel employed by the Indemnitee for any period during which both the Indemnifying Party has failed to assume and the defense thereof or failed to diligently conduct Indemnified Party by the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case same counsel would create a conflict of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)interest.
(ce) Notwithstanding anything The Indemnified Party shall take all reasonable steps to the contrary contained herein, no Indemnifying Party will consent avoid or mitigate its Losses upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any settlementLosses that are indemnifiable under this Agreement and/or any other Transaction Agreement, compromise or discharge including taking all reasonable steps to enforce any claim for indemnification for such Losses under any contract with any third party (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (winsurance coverage) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or may cover any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result portion of such failureLosses.
Appears in 2 contracts
Sources: Joint Venture Framework Agreement (Photronics Inc), Joint Venture Framework Agreement (Photronics Inc)
Procedures for Indemnification. (a) If (i) a claim or demand is made against C-W, any C-W Indemnitee, any C-W Member, UNITRIN, any UNITRIN Indemnitee or any UNITRIN Member (each, an Indemnitee "Indemnitee") by any Person person who is not a party to this Agreement (and who is not an Affiliate of each a party to this Agreement"Third Party Claim") as to which a such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the party which is or may be required pursuant to the terms hereof to make such indemnification (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (band in any event within five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and with respect to which a claim for indemnification is made pursuant to Section 3.1 or Section 3.2 hereof, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as thereof; provided, that such Indemnitee shall have the Indemnifying Party diligently conducts right to employ counsel to represent such defense; provided thatIndemnitee if, if (i) in any such Indemnitee's reasonable judgment judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request which would make representation of the Indemnitee) of both such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoparties by one counsel inappropriate, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that such event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would . Unless otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) , in no event will an Indemnitee admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account ; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of Damages which does the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not involve otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim shall be asserted by written notice given by the Indemnitee to (as between the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify and the Indemnitee), the Indemnifying Party shall be permitted to enter into, and the Indemnitee will not relieve agree to, any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party from may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any liability which it may have such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Indemnitee under this AgreementThird Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, except to the extent compromise or discharge; and provided further that the Indemnifying Party shall have demonstrated not agree to any other settlement, compromise or discharge of a Third Party Claim not described above without the prior written consent of the Indemnitee, such consent not to be unreasonably withheld. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. In such case, the Indemnifying Party shall be responsible for the cost of such compromise, settlement or defense. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that it for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(b) In the event any Tax Claim (as defined below) is disposed of pursuant to the provisions of this Section 3.4 or a Final Determination has been actually prejudiced made in circumstances that give rise to a Tax Liability or an Established Liability on the part of UNITRIN, any UNITRIN Member or any UNITRIN stockholder, as the case may be, then C-W shall pay to UNITRIN all amounts in respect of any Tax Claim within twenty (20) business days after such Tax Claim is disposed of or such Final Determination has been made. For purposes of this Section 3.4(b), (i) "Tax Claim" shall mean any notice of deficiency, proposed adjustment, adjustment, assessment, audit, examination, suit, dispute or other written claim which is commenced or initiated against UNITRIN, any UNITRIN Member or any UNITRIN stockholder with respect to Taxes that are attributable to the Recapitalization or Distribution and which result from any act or acts of C-W or its Subsidiaries described in Section 2.4 of this Agreement or the breach by C-W of any representation or warranty set forth in this Agreement and (ii) "Final Determination" shall mean (1) the entry of a result decision of a court of competent jurisdiction at such failuretime as an appeal may no longer be taken from such decision or (2) the execution of a closing agreement or its equivalent between the particular taxpayer and the particular relevant taxing authority.
Appears in 2 contracts
Sources: Distribution Agreement (Unitrin Inc), Distribution Agreement (Unitrin Inc)
Procedures for Indemnification. 1. If any Buyer Indemnified Party or Seller Indemnified Party (aan “Indemnified Party”) If a claim believes that it has suffered or demand incurred any Losses for which it is made against an Indemnitee by any Person who entitled to indemnification under this Article VIII, the Indemnified Party shall promptly notify the Party from whom indemnification is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party sought (the "“Indemnifying Party"”) may be obligated in writing of such claim, specifying in reasonable detail the nature of the claim, the amount of Losses claimed (to the extent known), and the basis for the claim. The failure to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify notice shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the its indemnification provided obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced by such failure.
2. If the claim for indemnification is based upon a claim asserted by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result the right, upon written notice to the Indemnified Party within thirty (30) days after receipt of notice of the Third Party Claim, to assume the defence of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) ’s expense with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Indemnified Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case defence of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the defence thereof. The Indemnifying Party).
(c) Notwithstanding anything Party shall not consent to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of judgment or enter into any settlement with respect to the Third Party Claim without the Indemnitee's prior written consent; providedconsent of the Indemnified Party (which consent shall not be unreasonably withheld, howeverconditioned, that, without limiting or delayed) unless such judgment or settlement includes an unconditional release of the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that Indemnified Party from all liability arising out of such Third Party Claim and does not obligate include any admission of liability or wrongdoing by the Indemnified Party.
3. If the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for assume the unconditional and irrevocable release defense of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conductingwithin the time period specified in Section 8.4(b), the defense thereofIndemnified Party shall have the right to defend, compromise, or settle such Third Party Claim at the Indemnitee will expense of the Indemnifying Party. The Indemnified Party shall not (unless required by law) admit consent to the entry of any liability judgment or enter into any settlement with respect to, or settle, compromise or discharge, such to the Third Party Claim without the Indemnifying Party's prior written consent of the Indemnifying Party (which consent will shall not be unreasonably withheld, conditioned, or delayed).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 2 contracts
Sources: Share Purchase Agreement (Fdctech, Inc.), Share Purchase Agreement (Fdctech, Inc.)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement ment (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 15 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partythereof. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate prosecution thereof. If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing liability for a Third Party Claim, (x) that does not provide for then in no event will the unconditional and irrevocable release of the 24 24 Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will not be unreasonably withheld).
(d) Any claim on account agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall have demonstrated not exceed the amount that it has been actually prejudiced as a result would be required to be paid by or on behalf of the Indemnifying Party in connection with such failuresettlement, compromise or discharge. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
Appears in 2 contracts
Sources: Distribution Agreement (Itt Industries Inc), Distribution Agreement (Itt Corp /Nv/)
Procedures for Indemnification. (a) If a claim or demand is made against An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee by any Person who is not has determined has given or would reasonably be expected to give rise to a party to right of indemnification under this Agreement (other than a Third-Party Claim, which shall be governed by this Section 4.6), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and who is not an Affiliate method of computation thereof, and containing a party reference to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to provisions of this Agreement (a "Third Party Claim"), in respect of which such right of indemnification is claimed by such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimor arises; provided, however, that the failure to give provide such notice shall not release the Indemnifying Party from any such notification will not affect the indemnification provided hereunder of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually and materially prejudiced as a result of such failure.
(b) If a Third Party Claim claim or demand is made against a Fox Indemnitee or a Newco Indemnitee (each, an “Indemnitee”) by any Person who is not a party to this Agreement or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party that is or may be required pursuant to this Section 4 or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within thirty (30) calendar days) after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that the failure to provide notice of any such Third-Party Claim pursuant to this sentence shall not release the Indemnifying Party unconditionally from any of its obligations except and irrevocably acknowledges in writing its obligation solely to indemnify the Indemnitee therefor, extent the Indemnifying Party will shall have been actually and materially prejudiced as a result of such failure (except that the Indemnifying Party or Parties shall not be entitled liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to assume give such notice). Thereafter, the defense thereof (at the expense of Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) with counsel selected Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(c) Other than in the case of any Liability being managed by a Party in accordance with any Ancillary Agreement or as provided in Section 4.8(a), an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is entitled to indemnification under this Section 4 to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. Should the After such notice from an Indemnifying Party so elect to an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 4.6, in the event that: (i) an Indemnifying Party will be liable elects not to assume responsibility for defending a Third-Party Claim; (ii) there exists a conflict of interest or potential conflict of interest, as reasonably determined by counsel for the fees Indemnitee, between the Indemnifying Party and expenses the applicable Indemnitee(s); (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee; (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim; or (v) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee(s) shall be entitled to assume the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel employed of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) No Indemnitee may settle, compromise or admit liability with respect to any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to assume the defense thereof or failed of the Third-Party Claim, it shall not be a defense to diligently conduct any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, or does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 9.4, the Merger Agreement or any Ancillary Agreement, following the Closing, the indemnification provisions of Damages which does not involve a Third Party Claim this Section 4 shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or Losses arising out of or relating to, as the case may be, any A&S Liability or Excluded Liability), and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Section 4 against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 2 contracts
Sources: Separation and Distribution Agreement, Separation and Distribution Agreement (Altra Industrial Motion Corp.)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim or demand referred to in this Article III, such indemnified party shall, if a claim pursuant to this Article III in respect thereof is made against an Indemnitee by indemnifying party, give written notice to the latter of the commencement of such action. The failure of any Person who is not a indemnified party to this Agreement notify an indemnifying party of any such action shall not (and who is not an Affiliate unless such failure shall have materially prejudiced the indemnifying party through the forfeiture of a substantive rights or defenses) relieve the indemnifying party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party from any liability in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware respect of such Third Party Claim; provided, however, action that failure it may have to give such indemnified party hereunder. In case any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim action is made brought against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforindemnified party, the Indemnifying Party will indemnifying party shall be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party participate in and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimthe claims in any such action that are subject or potentially subject to indemnification hereunder, jointly with any other indemnifying party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such indemnified party, and after written notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee responsible for any legal or other expenses subsequently incurred by the Indemnitee indemnified party in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided that, if (i) in any Indemnitee's reasonable judgment a indemnified party shall have reasonably concluded, based on the advice of counsel, that there are one or more legal or equitable defenses available to such indemnified party which are additional to or conflict of interest exists in respect of with those available to the indemnifying party, or that such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to litigation involves or could have an effect upon matters beyond the Indemnitee (upon request scope of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoindemnity provided hereunder, such Indemnitee will the indemnifying party shall not have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes assume the defense of any such Third Party Claimaction on behalf of such indemnified party without such indemnified party’s prior written consent (but, each Indemnitee will without such consent, shall have the right to participate in the defense thereof therein with counsel of its choice) and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable such indemnifying party shall reimburse such indemnified party for that portion of the fees and expenses of any counsel employed retained by the Indemnitee for any period during indemnified party which is reasonably related to the Indemnifying Party has failed to assume matters covered by the defense thereof or failed to diligently conduct indemnity provided hereunder. If the defense thereof, or if it does not expressly elect to, or indemnifying party is not entitled to, or elects not to, assume the defense thereof of a claim, (includingi) it shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the case reasonable judgment of any indemnified party a failure conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, and (ii) no indemnified party shall, without the prior written consent of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claimindemnifying party, the Indemnifying Party will promptly supply settle or compromise or consent to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree judgment with respect to any settlement, compromise action in respect of which indemnification or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with contribution could be sought under this Article III unless such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to consent includes a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with waiver by such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any indemnified party of its Affiliates or (z) that, in right to pursue indemnification from the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee indemnifying party under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureArticle III.
Appears in 1 contract
Sources: Registration Rights Agreement (Columbia Property Trust Operating Partnership, L.P.)
Procedures for Indemnification. (a) THIRD PARTY CLAIMS.
(i) If a claim or demand is made against an IMPCO Indemnitee or a Quantum Indemnitee (each, an "Indemnitee") by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to this Agreement to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within fifteen (15) business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five (5) business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(bii) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within thirty 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as thereof; provided, that such Indemnitee shall have the Indemnifying Party diligently conducts right to employ counsel to represent such defense; provided thatIndemnitee if, if (i) in any such Indemnitee's reasonable judgment judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request which would make representation of the Indemnitee) of both such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoparties by one counsel inappropriate, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that such event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of such defense, any such Third Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that (A) the Indemnifying Party shall control such defense and (B) the Indemnifying Party shall not, in respect of the legal expenses of any Indemnified Party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm for all such Indemnified Parties. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, all of the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party ClaimIndemnitees shall, at the request expense of the Indemnifying Party all the Indemnitees will reasonably Party, cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(ciii) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing responsibility for a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will not be unreasonably withheld).
(d) Any claim on account agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim.
(iv) Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be asserted by written notice given liable for the fees and expenses of counsel incurred by the Indemnitee to in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so shall be entitled to notify assume the Indemnifying Party will not relieve defense of the Indemnifying Party from any liability which it may have portion relating to such Indemnitee under this Agreementmoney damages (provided, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result indemnify the Indemnified Party for the fees and expenses of counsel incurred by the Indemnified Party in defending such failureportion of the claim seeking relief for other than money damages).
Appears in 1 contract
Sources: Contribution and Distribution Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Procedures for Indemnification. (a) If In order for any Indemnified Party to be entitled to make a claim or demand is made against for indemnification under this Article 10, such Indemnified Party shall deliver a written notice (an Indemnitee by any Person who is not a party “Indemnification Claim Notice”) to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated , as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to provide indemnification a claim for Losses pursuant to this Agreement Article 10. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (a "Third only to the extent ascertainable) of the potential Losses against which such Indemnified Party Claim")seeks indemnification for, such Indemnitee will notify the Indemnifying Party in writingclaim asserted, and in reasonable detail, the provisions of the Third Party Claim reasonably promptly after becoming aware of this Agreement upon which such Third Party Claimclaim for indemnification is made; provided, however, that any failure by such Indemnified Party to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party prompt Indemnification Claim Notice shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementof its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) the Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall have demonstrated that it has been actually prejudiced as a use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such failureattorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) during normal business hours to discuss such claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall not be obligated to make any working papers available to the Indemnifying Party or its Representatives unless and until such Party or such Representative, as applicable, has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such accountants), and (D) otherwise cooperate with the Indemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). Without limiting the foregoing, such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party or its Representatives of books, records and other documents and information which are actually and reasonably relevant to such claim. Upon becoming aware of any such claim for indemnification under this Article 10, the Indemnifying Party shall not take any steps which might reasonably be expected to damage the commercial interests of the Indemnified Party or its Affiliates without prior approval of the Indemnified Party.
(b) Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by delivering an Indemnification Claim Notice with respect to such Direct Claim to the Indemnifying Party promptly; provided, however, that any failure by such Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnified Party shall allow the Indemnifying Party and its Representatives to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party as provided in Section 10.6(a). The Indemnifying Party may, [**] receipt of an Indemnification Claim Notice with respect to such Direct Claim, deliver to the Indemnified Party a written response disputing such claim, which response must state in reasonable detail the reasons why the Indemnifying Party disputes such claim, together with reasonable supporting detail. [**].
(c) Save to the extent to which such Direct Claim has previously been satisfied, settled or withdrawn, any Direct Claim by an Indemnified Party shall not be enforceable against the Indemnifying Party and shall be deemed to have been withdrawn unless (except as agreed by the Parties otherwise) proceedings in respect of such claim are commenced, subject to Section 10.6(d), by the Indemnified Party [**] of service of notice of any dispute by the Indemnifying Party pursuant to Section 10.6(b).
(d) Where any Direct Claim by an Indemnified Party relates to a Loss which, at the time that such claim is notified to the Indemnifying Party is a contingent liability, the Indemnifying Party shall not be under any obligation to make any payment to an Indemnified Party in respect thereof and unless and until such time as the contingent liability ceases to be contingent and becomes actual and is due and payable. If an Indemnified Party has issued a notice in respect of such Direct Claim in accordance with Section 10.6(b) before the expiry of the relevant time periods for making such a claim against the relevant Indemnifying Party set out in Section 10.1, the [**] in Section 10.6(c) shall be deemed to commence upon the date which the liability ceases to be contingent and becomes an actual liability and is due and payable.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee by any Person who is not has determined has given or would reasonably be expected to give rise to a party to right of indemnification under this Agreement (other than a Third-Party Claim which shall be governed by Section 5.07(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and who is not an Affiliate method of computation thereof, and containing a party reference to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to provisions of this Agreement (a "Third Party Claim"), in respect of which such right of indemnification is claimed by such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimor arises; provided, however, that the failure to give provide such notice shall not release the Indemnifying Party from any such notification will not affect the indemnification provided hereunder of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failure.
(b) If a Third Party Claim claim or demand is made against an Entergy Indemnitee or a TransCo Indemnitee (each, an “Indemnitee”) by any Person who is not a party to this Agreement or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party that is or may be required pursuant to this Article V or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within thirty (30) calendar days) after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that the failure to provide notice of any such Third-Party Claim pursuant to this sentence shall not release the Indemnifying Party unconditionally from any of its obligations except and irrevocably acknowledges in writing its obligation solely to indemnify the Indemnitee therefor, extent the Indemnifying Party will shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party or Parties shall not be entitled liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to assume give such notice). Thereafter, the defense thereof (at the expense of Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) with counsel selected Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(c) Other than in the case of any Liability being managed by a Party in accordance with any Ancillary Agreement or as provided in Section 5.09(a), an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is entitled to indemnification under this Article V to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third- Party Claim. Should the After such notice from an Indemnifying Party so elect to an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnittee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 5.07, in the event that (i) an Indemnifying Party will elects not to assume responsibility for defending a Third- Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third- Party Claim, (v) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder or (vi) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee(s) shall be liable for entitled to assume the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) Unless the Indemnifying Party has failed to assume the defense thereof of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to diligently conduct assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non- monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 11.04, the Merger Agreement or any Ancillary Agreement, absent fraud or intentional misconduct by an Indemnifying Party, the indemnification provisions of Damages which does not involve a Third Party Claim this Article V shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or Losses arising out of or relating to, as the case may be, any Transmission Liability or Excluded Liability), and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article V against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Sources: Separation Agreement
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand is made or other claim against an Indemnitee the Indemnified Party by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "“Third Party Claim"”), such Indemnitee will describing the Third Party Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder. Except as otherwise provided in Section 9.7, any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result be entitled to participate in the defense of such failure.
(b) If a Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will option shall be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with by appointing a reputable counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnitee. Should Indemnified Party to be the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee lead counsel in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) that the Indemnified Party shall be entitled to participate in any Indemnitee's reasonable judgment a conflict the defense of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoto employ counsel of its choice for such purpose (provided that the fees and expenses of such separate counsel shall be borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX). Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such Indemnitee will action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to employ direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel to represent such Indemnitee counsel, and in that event the reasonable fees and expenses of such separate counsel will shall be paid borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest). Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto. In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense. If the Indemnifying Party assumes shall not reasonably promptly assume the defense of any such Third Party Claim, each Indemnitee will have the right or fails to participate in the defense thereof and to employ counsel, at its own expense, separate prosecute or withdraws from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with may defend against such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claimmatter, at the request Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party all the Indemnitees will reasonably cooperate with (which consent shall not be unreasonably withheld or delayed).
(b) The Indemnified Party shall notify the Indemnifying Party with respect to a Covered Claim even though the amount thereof plus the amount of other Covered Claims previously notified by the Indemnified Party in the defense thereof (such cooperation to be at aggregate is less than the expense, including reasonable legal fees and expenses, of the Indemnifying Party)Deductible.
(c) Notwithstanding anything to In the contrary contained herein, no Indemnifying Party will consent to event that any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee party or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and alleges that it is entitled to assumeindemnification hereunder, and that its claim is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or dischargecovered under more than one provision of this ARTICLE IX, such Third Party Claim without party or Affiliates shall be entitled to elect the Indemnifying Party's prior written consent (provision or provisions under which consent will not be unreasonably withheld)it may bring a claim for indemnification.
(d) Any A claim on account of Damages which does for indemnification for any matter not involve involving a Third Party Claim shall may be asserted by written notice given by the Indemnitee to the Indemnifying Party party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If Promptly after receipt by an ------------------------------ indemnified party under Section 9.01 or 9.02 of notice of the commencement of any action for which indemnification is available under Section 9.01 or 9.02, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemnitee by any Person who is not a indemnifying party under such section, give notice to this Agreement (and who is not an Affiliate the indemnifying party of a party the commencement thereof, but the failure so to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party shall not relieve it of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, any liability that failure it may have to give any such notification will not affect the indemnification provided hereunder an indemnified party except to the extent the Indemnifying Party indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall have demonstrated be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforshall elect, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee such indemnified party under such section for any legal fees of other counsel or any other expenses expenses, in each case subsequently incurred by the Indemnitee such indemnified party in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided thatthereof, other than reasonable costs of investigation and costs and expenses of legal counsel, if (i) in any Indemnitee's reasonable judgment the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to one counsel's representing both it and the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyindemnifying party. If the Indemnifying Party an indemnifying party assumes the defense of such an action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's consent (which shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on any other claims that may be made against the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party, and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld, delayed or conditioned). If notice is given by an indemnified party to an indemnifying party of the commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof, the indemnifying party shall be bound by any determination made in such Third Party Claimaction or any compromise or settlement thereof effected by the indemnified party. Notwithstanding the foregoing, each Indemnitee will if an indemnified party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its affiliates other than as a result of monetary damages, such indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise or settle such action, but the indemnifying party shall have the right to participate in the defense thereof such action and to employ counsel, at its own expense, separate from the counsel employed not be bound by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses any determination of counsel employed by the Indemnitee for an action so defended or any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim settlement thereof effected without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld, delayed or conditioned).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Procedures for Indemnification. (a) If a party entitled to indemnification under this Section 9 (an “Indemnitee”) asserts that a party obligated to indemnify it under this Section 9 (an “Indemnitor”) has become obligated to such Indemnitee pursuant to Section 9.2 or 9.3, or if any suit, action, investigation, claim or demand proceeding is begun, made against or instituted as a result of which the Indemnitor may become obligated to an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")hereunder, such Indemnitee will notify shall give written notice to the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party ClaimIndemnitor; provided, however, that the failure of the Indemnitee to give any such notification will prompt notice to the Indemnitor shall not affect release the Indemnitor of its indemnification provided hereunder obligations hereunder, except to the extent the Indemnifying Party Indemnitor shall have demonstrated that it has been actually materially prejudiced as a result by such failure. The Indemnitor may, but shall not be obligated to, upon prompt written notice to Indemnitee, assume the defense of such failure.
(b) suit, action, investigation, claim or proceeding. If the Indemnitor furnishes such written notice, the Indemnitor shall have the sole power to direct and control the defense of any such suit, action, investigation, claim or proceeding. The Indemnitee shall have the right, but not the obligation, to participate at its own expense in the defense thereof by counsel of the Indemnitee’s choice. The Indemnitee shall make available all information and assistance that the Indemnitor may reasonably request and shall fully cooperate with the Indemnitor in such defense. In the event of a Third Party Claim is made against an failure of the Indemnitee and to provide cooperation as required under this Section 9.4, the Indemnifying Party unconditionally and irrevocably acknowledges in writing its Indemnitor’s obligation to indemnify the Indemnitee thereforshall be reduced to the extent of the Losses with respect to which the Indemnitor’s ability to defend against the action, investigation, claim or proceeding underlying such indemnification obligation has been prejudiced by such failure. The Indemnitor shall not compromise or settle any such suit, action, investigation, claim or proceeding unless (x) such compromise or settlement is on exclusively monetary terms and shall be paid entirely by the Indemnitor (subject to the provisions of Section 9.2(b)(i) and (ii) and 9.3(b)(i) and (ii), which shall be controlling) and the Indemnitee receives an unconditional release in such compromise or settlement or (y) the Indemnitee shall have consented in writing to the terms of such compromise or settlement, which consent shall not unreasonably withheld; provided, however, that if the Indemnitee fails to consent thereto, the Indemnifying Party will be entitled Indemnitor’s liability with respect to assume such matter, if any, shall not exceed the defense thereof (at proposed settlement amount. If the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to Indemnitor does not assume the defense of a Third Party Claimsuch suit, action, investigation, claim or proceeding, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claimdo so, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing the right to make any compromise or settlement thereof, in which case, the Indemnitee shall be entitled to recover the entire cost thereof from the Indemnitor (to the Indemnitee on request updates and summaries as extent constituting indemnifiable Losses under this Section 9) subject to the status thereof). If provisions of this Section 9, including, without limitation, reasonable attorneys’ fees, disbursements and amounts paid as the Indemnifying Party is entitled result of such suit, action, investigation, claim or proceeding and that constitute indemnifiable Losses under this Section 9; provided that the Indemnitor shall have the right, but not the obligation, to and chooses to defend a Third Party Claim, participate at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party its own expense in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, by counsel of the Indemnifying Party).
Indemnitor’s choice. Notwithstanding the foregoing provisions of this Section 9.4, (ci) Notwithstanding anything to if a Person brings a claim for patent infringement against Buyer, Level 3 and/or their Subsidiaries (the contrary contained herein“Buyer Parties”) that alleges infringement liability of any of the Buyer Parties for both the period before Closing and the period after Closing, no Indemnifying Party (A) the Buyer Parties and SAVVIS Parent, the Sellers and their Subsidiaries (the “Seller Parties”) will consent to any settlement, cooperate in defending such claim and (B) the Buyer Parties will not compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim settle such claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (of SAVVIS, which consent will not be unreasonably withheld).
, and (dii) Any if a Person brings a claim on account for patent infringement against any of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to Seller Parties that alleges infringement liability of any of the Indemnifying Party from whom Seller Parties for both the period after Closing and the period before Closing, (A) the Seller Parties and the Buyer Parties will cooperate in defending such indemnification is sought. The failure by any Indemnitee so to notify claim and (B) the Indemnifying Party Seller Parties will not relieve compromise or settle such claim without the Indemnifying Party from any liability prior written consent of Level 3, which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureconsent will not be unreasonably withheld.
Appears in 1 contract
Sources: Purchase Agreement (SAVVIS, Inc.)
Procedures for Indemnification. (a) If Promptly after receipt by a Buyer Indemnified Party or Seller Indemnified Party, as applicable (the “Indemnified Party”), of written notice of the assertion or the commencement of any claim or other Action by a third party with respect to any matter referred to in Sections 8.2(a), 8.2(b), or 8.2(c), or 8.3(a), 8.3(b) or 8.3(c), the Indemnified Party shall give written notice thereof to Seller or Buyer, as applicable (the “Indemnifying Party”), which notice shall include a reasonably detailed description of the claim or Action and the estimated amount of Losses asserted in connection therewith (to the extent known and quantifiable) and the basis for the claim or Action, and thereafter prior to such time that the Indemnifying Party assumes the defense thereof shall keep the Indemnifying Party reasonably informed with respect thereto; provided, however, that failure of the Indemnified Party to give such notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is actually prejudiced thereby.
(b) The Indemnifying Party shall be entitled to participate in the defense of such claim or Action giving rise to the Indemnified Party’s claim for indemnification at the Indemnifying Party’s expense, and at its option (subject to the limitations set forth below), to be exercised by giving written notice to the Indemnified Party, shall be entitled to assume the defense thereof at the Indemnifying Party’s expense by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in the defense of such claim or Action and to employ counsel of its choice for such purpose, so long as the fees and expenses of such separate counsel are borne by the Indemnified Party; provided, that if in the reasonable opinion of counsel to the Indemnified Party, there exists a conflict of interest between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be liable for the reasonable documented and out-of-pocket fees and expenses of counsel to the Indemnified Party;
(ii) the Indemnifying Party shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnified Party) and shall pay the reasonable and documented out-of-pocket fees and expenses of counsel retained by the Indemnified Parties if
(A) the claim for indemnification relates to or arises in connection with any criminal proceeding, Action or indictment; (B) the claim seeks an injunction or equitable relief against an Indemnified Party; or (C) the claim is reasonably expected to affect a Tax Return to be filed by the Indemnified Party;
(iii) at any time during the pendency of such claim or any litigation or other Action relating thereto, the Indemnified Party may assume control of the defense and settlement of such claim upon prior written notice to the Indemnifying Party if the Indemnifying Party fails to diligently defend such claim as reasonably determined in good faith by the Indemnified Party; and
(iv) if the Indemnifying Party assumes control of the defense of any such claim or Action, the Indemnified Party shall agree to any settlement, compromise or discharge of such claim or litigation that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of Losses in connection with such claim or litigation and does not impose any financial or other obligations or restrictions on the Indemnified Party in any manner; provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of a claim or demand is made Action or ceasing to defend such claim or Action if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief may be imposed against an Indemnitee by the Indemnified Party or if such settlement does not expressly and unconditionally release the Indemnified Party from any Person who is not and all liabilities with respect to such claim or Action.
(c) Notwithstanding, Sections 8.4(a) and 8.4(b), if the Buyer or Seller (or any of their respective Affiliates) receives notice of a pending or threatened action, claim, audit, examination, investigation, contest, administrative proceeding or court proceeding relating to Taxes that could give rise to a claim for indemnification under this Article VIII (each, a “Tax Dispute”), then the party first receiving notice of such Tax Dispute shall provide prompt written notice thereof to the other party; provided, however, that the failure of such party to this Agreement (and who is give such prompt written notice shall not an Affiliate relieve the other party of a party to any of its obligations under this Agreement, except to the extent such delay actually prejudices the other party. Buyer, at its own cost, shall control the defense of any Tax Dispute; provided, that: (i) Buyer shall keep Seller reasonably informed and consult with Seller with respect to any issue relating to such Tax Dispute; (ii) Seller shall have the right to fully participate in any such Tax Dispute at its own cost, and (iii) Buyer shall not agree to settle or compromise any such Tax Dispute without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. In the event of any inconsistency between the provisions of this Section 8.4(c), on the one hand, and the provisions of Sections 8.4(a) and 8.4(b), on the other hand, the provisions of this Section 8.4(c) shall control as it relates to which a party Tax matters.
(the "Indemnifying Party"d) may In order for any Indemnified Party to be obligated entitled to provide any indemnification pursuant to this Agreement (Article VIII for a "Third Loss that does not result from any claim or other Action by a third party, the Indemnified Party Claim"), such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, writing within fifteen (15) Business Days of the Third such Indemnifying Party Claim reasonably promptly after becoming aware of the event giving rise to such Third Party ClaimIndemnified Party’s claim for indemnification, specifying in reasonable detail the basis of such claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
. The Indemnifying Party shall have thirty (b30) If a Third days after its receipt of such notice to respond in writing to such claim, during which thirty (30) day period the Indemnified Party Claim is made against an Indemnitee and shall give the Indemnifying Party unconditionally reasonable access to the books and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense records of the Indemnifying Party) with counsel selected by the Indemnifying Indemnified Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal that evidence or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of support such claim or (ii) any Indemnifying Party fails the act, omission or occurrence giving rise to provide such claim, upon reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim advance notice and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyduring normal business hours. If the Indemnifying Party assumes the defense of disputes its liability with respect to any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claimclaim, the Indemnifying Party will promptly supply and the Indemnified Party shall proceed to seek in good faith to negotiate a resolution of such dispute for a period of thirty (30) days. If after the conclusion of such thirty (30) day period the dispute has not been resolved, the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnitee copies of all correspondence Indemnified Party on the terms and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing subject to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request provisions of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
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Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by No party hereto will be liable for any Person who is not a party to Claim for indemnification under this Agreement (and who is not an Affiliate Article IX unless written notice of a Claim for indemnification is delivered by the party seeking indemnification (the "Indemnified Party") to this Agreement) as to which a party the Party from whom indemnification is sought (the "Indemnifying Party") prior to the expiration of the applicable survival period, if any, set forth in Section 9.1. If any third party notifies the Indemnified Party with respect to any matter which may be obligated give rise to provide a Claim for indemnification pursuant to this Agreement (a "Third Party Claim")) against the Indemnifying Party under this Article IX, such Indemnitee then the Indemnified Party will notify the Indemnifying Party promptly thereof in writing, writing and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 9.4 will describe with reasonable detail, specificity the Third Party Claim and the basis of the Indemnified Party's Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforParty, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by of its choice, provided, however, the Indemnifying Indemnified Party may participate (but not control) such defense and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect after notice of its election to assume the defense of a Third Party Claimthereof, the Indemnifying Party will not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof as long as of the Third Party Claim, other than reasonable costs of investigation, unless the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect does not actually assume the defense thereof following notice of such claim or (ii) any election. If the Indemnifying Party fails to provide reasonable assurance to does not assume the Indemnitee (upon request defense of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoClaim, such Indemnitee the Indemnified Party will have the right to employ separate counsel to represent such Indemnitee and in that event undertake the reasonable fees and expenses defense of such separate Third Party Claim, by counsel will be paid by such or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the limitations on the Indemnifying Party's obligations to indemnify otherwise set forth in this Article IX and to the right of the Indemnifying Party to assume the defense of or opposition to such Third Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the Indemnified Party nor the Indemnifying Party will consent to the entry or any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the other Party under this Article IX without such Party's consent, which will not be unreasonably withheld or delayed. If the Indemnifying Party assumes the defense of elects to settle any such Third Party Claim, each Indemnitee will have and the right Indemnified Party refuses to participate in consent to such compromise or settlement, then the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure liability of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply be limited to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with amount offered by the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
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Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Distribution Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Distribution Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 20 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will within such 20 business day period shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within 20 business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partythereof. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee (i) for any period during which the Indemnifying Party has failed to assume the defense thereof (other than during the 20 business day period prior to the time the Indemnitee shall have given notice of the Third Party Claim as provided above) or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, ii) in the case event the Indemnitee reasonably determines, based on the advice of its counsel that there shall exist a failure conflict of interest between the Indemnitee and the Indemnifying Party or that there are defenses available to the Indemnitee that are not available to the Indemnifying Party, the effect of which shall be to make it impractical for the Indemnitee and the Indemnifying Party to acknowledge its indemnification obligation as aforesaid)be jointly represented by the same counsel, in which case the Indemnifying Party shall be liable for the fees and expenses of one counsel for all Indemnitees in any single or series of related Actions. If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)or prosecution thereof.
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate If the Indemnifying Party to pay the full amount acknowledges in writing liability for indemnification of Damages in connection with such a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for indemnification of a Third Party Claim, the Indemnitee will agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend that by its terms (which consent will i) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, (ii) releases the Indemnitee completely in connection with such Third PartyClaim and (iii) would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge and may assume the defense of such Third Party Claim if the Indemnitee agrees (A) that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall not exceed the amount that would have been required to be unreasonably withheldpaid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge and (B) to assume all costs and expenses thereafter incurred in connection with the defense of such Third Party Claim (other than those contemplated by subclause (A) herein above).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by Notwithstanding the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementforegoing, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such failureThird Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief other than money damages against the Indemnitee which the Indemnitee reasonably determines, based on the advice of its counsel, cannot be separated from any related claim for money damages. If such equitable or other relief portion of the Third Party Claim can be so separated from the claim for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
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Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party under Section 12.2 or Section 12.3 of notice of the commencement of any third party action for which indemnification may be available under Section 12.2 or 12.3, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemnitee by any Person who is not a indemnifying party under such Section, give notice to this Agreement (and who is not an Affiliate of a the indemnifying party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware commencement thereof, but the failure so to notify that indemnifying party shall not relieve it of such Third Party Claim; providedany liability that it may have to any indemnified party, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall have demonstrated be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforshall elect, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will indemnifying party shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have liable to such Indemnitee indemnified party under this Agreementsuch Section for any fees of other counsel or any other expenses, except to in each case incurred by such indemnified party in connection with the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.indemnified party's own defense thereof, other than reasonable costs of
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Procedures for Indemnification. (a) If a All claims for indemnification by any Indemnified Party under this Article VII shall be asserted and resolved as follows:
(i) In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under this Article VII is made asserted against an Indemnitee or sought to be collected from such Indemnified Party by any a Person who is not other than a party to this Agreement (and who is not Party or an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement thereof (a "“Third Party Claim"”), such Indemnitee will notify the Indemnifying Indemnified Party in writingshall deliver a written notification, enclosing a copy of all papers served, if any, and in reasonable detail, specifying the nature of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee basis for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide for the Indemnified Party’s claim for indemnification that is being asserted under any provision of this Article VII against an Indemnifying Party, together with respect theretothe amount or, such Indemnitee will have if not then reasonably ascertainable, the right to employ separate counsel to represent such Indemnitee and estimated amount, determined in that event the reasonable fees and expenses good faith, of such separate counsel will be paid by such Third Party Claim (a “Claim Notice”) with reasonable promptness to the Indemnifying Party. If the Indemnifying Indemnified Party assumes fails to provide the defense Claim Notice with reasonable promptness after the Indemnified Party receives notice of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply shall not be obligated to indemnify the Indemnitee copies of all correspondence and documents relating Indemnified Party with respect to or in connection with such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the period ending thirty (30) Business Days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party under this Article VII and keep whether the Indemnitee fully informed Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim.
(ii) If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Article VII, then the Indemnifying Party shall have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of all developments relating to or in connection with the Indemnifying Party, such Third Party Claim (includingby all appropriate proceedings, without limitation, providing to the Indemnitee on request updates which proceedings shall be vigorously and summaries as to the status thereof). If diligently prosecuted by the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, final conclusion or will be settled at the request discretion of the Indemnifying Party all (but only with the Indemnitees will consent of the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to this Article VII). The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s delivery of the notice referred to in the first sentence of this Section 7.02(a)(ii), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably cooperate with believes to be necessary or appropriate to protect its interests; and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of contesting any Third Party Claim that the Indemnifying Party).
(c) Notwithstanding anything Party elects to the contrary contained hereincontest. The Indemnified Party may participate in, no Indemnifying Party will consent to but not control, any settlement, compromise defense or discharge (including the consent to entry of any judgment) settlement of any Third Party Claim without controlled by the Indemnitee's prior written consent; providedIndemnifying Party pursuant to this Section 7.02(a)(ii), however, that, without limiting and except as provided in the Indemnitee's rights set forth in this preceding sentence, the Indemnitee Indemnified Party shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may refuse take over the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to agree indemnity under this Article VII with respect to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, .
(xiii) If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that does not provide for the unconditional and irrevocable release of Indemnifying Party desires to defend the Indemnitee and its Affiliates (Third Party Claim pursuant to a release which is reasonably satisfactory this Article VII, or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently or settle the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting if the Indemnitee or Indemnifying Party fails to give any of its Affiliates or (z) thatnotice whatsoever within the Dispute Period, in then the reasonable opinion Indemnified Party shall have the right to defend, at the sole cost and expense of the IndemniteeIndemnifying Party, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and is entitled to assume, and is diligently conducting, in good faith or will be settled at the defense thereof, discretion of the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without Indemnified Party(with the consent of the Indemnifying Party's prior written consent (, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 7.02(a)(iii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in Section 7.02(a)(iv) the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 7.02(a)(iii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 7.02(a)(iii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.
(div) Any claim on account If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified Party with respect to the Third Party Claim or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party Claim, the amount of Damages which specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under this Article VII and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such Third Party Claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(v) In the event any Indemnified Party should have a claim under this Article VII against the Indemnifying Party that does not involve a Third Party Claim Claim, the Indemnified Party shall be asserted by deliver a written notice given by notification of a claim for indemnity under this Article VII specifying the Indemnitee nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party from whom such indemnification is soughtParty. The failure by any Indemnitee so Indemnified Party to notify give the Indemnifying Party will Indemnity Notice shall not relieve the Indemnifying Party from any liability which it may have to impair such Indemnitee under this Agreement, Party’s rights hereunder except to the extent that the Indemnifying Party shall have demonstrated demonstrates that it has been actually irreparably prejudiced as thereby. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a result liability of the Indemnifying Party under this Article VII and the Indemnifying Party shall pay the amount of such failureDamages to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within thirty (30) Business Days after the Claim Notice, such dispute shall be resolved in accordance with the provisions of Section 8.08.
(b) The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such claim.
(c) The indemnification provisions contained in this Article VII shall be in addition to (i) any cause of action or similar rights of the Indemnified Party against the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
Appears in 1 contract
Sources: Restructuring, Settlement and Mutual General Release Agreement (Ngen Technologies Holdings Corp.)
Procedures for Indemnification. Each party entitled to indemnification under this Article 3 (a) If a claim or demand is made against an Indemnitee by any Person who is not a the "Indemnified Party"), shall give notice to the party required to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be obligated to provide indemnification pursuant to sought in accordance with this Agreement (a "Third Party Claim")Article 3, such Indemnitee will notify and shall permit the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense. Failure of the Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Article 3 only to the extent that the failure or delay in giving notice has a Third material adverse impact on the ability of the Indemnifying Party Claimto defend against such claim. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof, the giving of a release from all liability in respect to such claim or litigation. If any such Indemnified Party shall have been advised by counsel chosen by it 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, the Indemnifying Party will shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent assume the defense of such Indemnitee action on behalf of such Indemnified Party and in that event will reimburse such Indemnified Party and any person controlling such Indemnified Party for the reasonable fees and expenses of such separate any counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed retained by the Indemnifying Indemnified Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent being understood that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result not, in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for such failureIndemnified Party or controlling person, which firm shall be designated in writing by the Indemnified Party to the Indemnifying Party.
Appears in 1 contract
Sources: Registration Rights Agreement (Global Self Storage, Inc.)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party under Sections 12.2 and 12.3 of notice of the commencement of any action for which indemnification may be available under Section 12.2 or 12.3, such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemnitee by any Person who is not a indemnifying party under such Section, give notice to this Agreement (and who is not an Affiliate of a the indemnifying party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware commencement thereof, but the failure so to notify that indemnifying party shall not relieve it of such Third Party Claim; providedany liability that it may have to any indemnified party, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall have demonstrated be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforshall elect, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee such indemnified party under such Section for any legal fees of other counsel or any other expenses subsequently expenses, in each case incurred by the Indemnitee such indemnified party in connection with the defense thereof as long as thereof, other than reasonable costs of investigation and costs and expenses of legal counsel if the Indemnifying Party diligently conducts such defense; provided that, if (i) indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel that there may be one or more defenses available to it and not available to the indemnifying party which defenses result in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyinterest. If the Indemnifying Party an indemnifying party assumes the defense of any such Third Party Claiman action, each Indemnitee will have the right to participate in the defense (a) no compromise or settlement thereof and to employ counsel, at its own expense, separate from the counsel employed may be effected by the Indemnifying Party. The Indemnifying Party will indemnifying party without the indemnified party's consent (which shall not be liable for unreasonable withheld) unless (i) there is no finding or admission or any violation of law or any violation of the fees rights of any person and expenses of counsel employed no effect on any other claims that may be made against the indemnified party and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnitee for any period during which indemnifying party and (b) the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, indemnifying party shall have no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, to any compromise or discharge, such Third Party Claim settlement thereof effected without the Indemnifying Party's prior written its consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If The Party or other indemnified Person making a claim or demand for indemnification under this Article 9 is made against an Indemnitee by any Person who referred to as the “Indemnified Party” and the Party providing indemnification is not a party referred to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "“Indemnifying Party") ” for the purposes of this Article. The following provisions shall apply to any Claims for which an Indemnifying Party may be obligated to provide indemnification indemnify an Indemnified Party pursuant to this Agreement Agreement:
(a) upon receipt from a "Third third party by the Indemnified Party Claim")of notice of a claim or the Indemnified Party becoming aware of a claim in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party, such Indemnitee will notify the Indemnified Party shall give notice to that effect to the Indemnifying Party in writingwith reasonable promptness, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, provided that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party notice shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, the Indemnified Party except to the extent that the Indemnifying Party is prejudiced thereby;
(b) in the case of Claims arising from third parties, the Indemnifying Party shall have demonstrated the right by notice to the Indemnified Party not later than 30 days after receipt of the notice described in paragraph (a) above to assume the control of the defence, compromise or settlement of the claims, provided that such assumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party’s request furnish it has been actually prejudiced as a result with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such failuredefence, compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall diligently proceed with the defence, compromise or settlement of the claims at its sole expense, including employment of counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall cooperate fully, but at the expense of the Indemnifying Party, to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party’s control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defence; provided always that the Indemnified Party shall be entitled to reasonable security from the Indemnifying Party for any expense, costs or other liabilities to which it may be or may become exposed by reason of such cooperation;
(d) the final determination of any such claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be, of such claims against the Indemnifying Party hereunder; and
(e) should the Indemnifying Party fail to give notice to the Indemnified Party as provided in paragraph (b) above, the Indemnified Party shall be entitled to make such settlement of the claims as in its sole discretion may appear reasonably advisable, and such settlement or any other final determination of the claims shall be binding upon the Indemnifying Party.
Appears in 1 contract
Sources: Business Combination Agreement
Procedures for Indemnification. (a) If a claim or demand for Damages (“Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made against an Indemnitee by any a Person who is not a party entitled to indemnification under this Agreement Article 8 (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying “Indemnified Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"”), such Indemnitee will notify party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) to Sellers’ Representative or Buyer, as applicable (each an “Indemnifying Party”), as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article 8. Any failure to submit any such notice of claim to the Indemnifying Party in writingshall not relieve any Indemnifying Party of any Liability hereunder, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have demonstrated that it has been actually prejudiced as agreed to pay the Damages at issue if the Indemnifying Party does not send a result notice of such failuredisagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages.
(b) If a Third Party an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, arising out of or involving a claim made by any third party (each, a “Third-Party Claim”) against an Indemnitee and the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party unconditionally and irrevocably as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing its obligation to indemnify an Indemnified Party that the Indemnitee thereforIndemnifying Party would be liable and have indemnity obligations for any Damages resulting from any such Third-Party Claim if the facts alleged in such Third-Party Claim were accepted as true, the Indemnifying Party will shall be entitled entitled, if it so elects at its own cost, risk and expense, (i) to assume take control of the defense thereof and investigation of such Third-Party Claim, (at ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the expense of Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party) with , and any such Indemnified Party has been advised in writing by counsel selected by 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, in which event such Indemnified Party and reasonably satisfactory to the Indemnitee. Should shall be entitled, at the Indemnifying Party so elect Parties’ cost, risk and expense, to assume separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the defense written consent of a Third the Indemnified Party, such consent not to be unreasonably withheld, provided that any such compromise or settlement shall provide for the absolute and unconditional release of the Indemnified Parties from any Liability with respect to such Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of a Third-Party Claim (to the extent permitted above), the Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third-Party Claim 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 Third lawsuit or action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party Claimfails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense), each Indemnitee the Indemnified Party against which such claim has been asserted will have the right to participate in the defense thereof and to employ counselundertake, at its own the Indemnifying Parties’ cost, risk and expense, separate from the counsel employed by defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party. The Indemnifying Party will , which consent shall not be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid)unreasonably withheld. If the Indemnifying Indemnified Party assumes the defense of any such Third the claim, the Indemnified Party Claim, will keep the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully reasonably informed of all developments relating to or in connection with the progress of any such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlementdefense, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consentsettlement; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result may, at its own cost, participate in the investigation, trial and defense of such failurelawsuit or action and any appeal arising therefrom. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.5 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Damages by reason of such settlement or judgment subject to the limitations provided in this Article 8.
Appears in 1 contract
Procedures for Indemnification. (ai) If a Each Person seeking indemnification under this Article VII (the “Indemnified Party”) shall give prompt notice to the Person from whom indemnification is sought (the “Indemnifying Party”) of the assertion of any claim or demand is made against an Indemnitee the commencement of any Action by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "“Third Party Claim"”), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that the failure to give any such notification will not affect the indemnification provided hereunder except unless the Indemnifying Party is materially prejudiced by such failure, and then only to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense prejudice. Upon receipt of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense such notice of a Third Party Claim, the Indemnifying Party will not be liable have the right to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with assume the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretousing counsel of its choice reasonably satisfactory to the Indemnified Party; provided, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in however, that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to obtain the Indemnitee copies prior written consent of all correspondence and documents relating to the Indemnified Party (which may not be unreasonably withheld, delayed or in connection with conditioned) before entering into any settlement or compromise of such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend permit a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise default or discharge (including the consent to entry of any judgment. Notwithstanding the foregoing, consent of an Indemnified Party shall not be required for any such settlement if (i) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party, and (ii) the settlement includes an unconditional release of such Indemnified Party and its Affiliates from all Liability relating to claims that are the subject matter of the Third Party Claim and does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any Indemnifying Party or its Affiliates. In the event the Indemnified Party reasonably concludes that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Party, or there is otherwise an actual or potential conflict of interest between the Indemnified Party and Indemnifying Party, the Indemnified Party will have the right, at the Indemnifying Party’s reasonable expense, to select separate counsel and to otherwise separately defend itself but will not consent to the entry of a judgment or enter into any settlement with respect to the Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount consent of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (, which consent will not be unreasonably withheld). With respect to any Third Party Claim subject to indemnification under this Agreement, the Indemnified Party agrees to cooperate and cause its Affiliates to cooperate in good faith with the Indemnifying Party in connection with the defense of such Third Party Claim. After any decision, judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement with respect to a Third Party Claim hereunder, the Indemnified Party shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter.
(dii) Any In the event an Indemnified Party has a claim on account of Damages which for indemnity under Section 7.1(a) or Section 7.1(b) against an Indemnifying Party that does not involve a Third Party Claim Claim, the Indemnified Party agrees to give prompt notice in writing, and as promptly as practicable, of such claim to the Indemnifying Party, which notice shall in no event be asserted by written notice given by the Indemnitee delivered to the Indemnifying Party from whom later than 30 days after the Indemnified Party first learns of the facts on which such claim is based (such 30 day period, the “Notice Period”). Such notice shall set forth in reasonable detail such claim and the basis for indemnification and the amount of such Damages incurred or that such Indemnified Party reasonably estimates in good faith is soughtlikely to be incurred in connection with such claim (taking into account the information then available to the Indemnified Party). The failure by any Indemnitee so to notify the Indemnifying Party will as promptly as practicable within the Notice Period shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementof its obligations hereunder, except to the extent that such failure shall have actually and adversely prejudiced the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Sources: Asset Purchase Agreement (PHH Corp)
Procedures for Indemnification. (a) If a claim there occurs an event that either Party asserts is an indemnifiable event pursuant to Section 8.2 or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party 8.3, the Party seeking indemnification (the "Indemnifying “Indemnified Party"”) may be shall promptly provide notice (the “Notice of Claim”) to the other Party or Parties obligated to provide indemnification pursuant (the “Indemnifying Party”). Providing the Notice of Claim shall be a condition precedent to this Agreement (a "Third Party Claim"), such Indemnitee will notify any Liability of the Indemnifying Party in writinghereunder, and in reasonable detailthe failure to provide prompt notice as provided herein will relieve the Indemnifying Party of its obligations hereunder, but only if and to the extent that such failure materially prejudices the Indemnifying Party hereunder. If the Indemnified Party provides a Notice of Claim to the Indemnifying Party of the Third commencement thereof, the Indemnifying Party Claim shall be entitled to participate therein and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably promptly satisfactory to such Indemnitee and, after becoming aware notice from the Indemnifying Party to such Indemnified Party of such Third election so to assume the defense thereof, the Indemnifying Party Claimshall not be liable to the Indemnified Party hereunder for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by the Indemnified Party, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that failure to give any such notification will not affect if the indemnification provided hereunder except to the extent Indemnified Party reasonably believes that counsel for the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third cannot represent both the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally because such representation would be reasonably likely to result in a conflict of interest, then the Indemnified Party shall have the right to its own defense by counsel (limited to one firm) of its own choosing and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the sole cost and expense of the Indemnifying Party) . The Indemnified Party agrees to reasonably cooperate with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume its counsel in the defense of a Third Party Claimagainst any such asserted Liability. In any event, the Indemnifying Indemnified Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate at its own expense in the defense of such asserted Liability. No Indemnifying Party, in the defense of any Claim shall, except with the written consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof and the release of the Indemnified Party from all Liability in respect to employ counsel, at its own expense, separate from such Claim or that does not solely require the counsel employed payment of money damages by the Indemnifying Party. The Indemnifying Party will agrees to afford the Indemnified Party and its counsel the opportunity to be liable present at, and to participate in, conferences with all Persons asserting any Claim against the Indemnified Party or conferences with representatives of or counsel for such Persons. In no event shall the fees and expenses Indemnifying Party, without the written consent of counsel employed by the Indemnitee Indemnified Party, settle any Claim on terms that provide for any period during which (i) a criminal sanction against the Indemnified Party or (ii) injunctive relief affecting the Indemnified Party.
(b) Upon receipt of a Notice of Claim, the Indemnifying Party has failed shall have twenty (20) calendar days to assume contest its indemnification obligation with respect to such claim, or the defense thereof or failed to diligently conduct the defense amount thereof, by written notice to the Indemnified Party (the “Contest Notice”); provided, however, that if, at the time a Notice of Claim is submitted to the Indemnifying Party the amount of the Damage in respect thereof has not yet been determined, such twenty (20) day period in respect of, but only in respect of the amount of the Damage, shall not commence until a further written notice (the “Notice of Liability”) has been sent or if it does not expressly elect to, delivered by the Indemnified Party to the Indemnifying Party setting forth the amount of the Damage incurred by the Indemnified Party that was the subject of the earlier Notice of Claim. Such Contest Notice shall specify the reasons or is not entitled to, assume bases for the defense thereof (including, in the case of a failure objection of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Claim, and if the objection relates to the amount of the Damages asserted, the amount, if any, that the Indemnifying Party assumes believes is due the defense of Indemnified Party, and any undisputed amount shall be promptly paid over to the Indemnified Party. If no such Third Party ClaimContest Notice is given within such twenty (20) day period, the Indemnifying Party will promptly supply to the Indemnitee copies obligation of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full Indemnified Party the amount of Damages the Damage set forth in connection with such Third Party the Notice of Claim, or subsequent Notice of Liability, shall be deemed established and accepted by the Indemnifying Party.
(xc) that does not provide for If the unconditional Indemnifying Party fails to assume the defense of such Claim or, having assumed the defense and irrevocable release settlement of such Claim, fails reasonably to contest such Claim in good faith, the Indemnified Party, without waiving its right to indemnification, may assume, at the cost of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conductingParty, the defense thereofand settlement of such Claim; provided, however, that (i) the Indemnitee will Indemnifying Party shall be permitted to join in the defense and settlement of such Claim and to employ counsel at its own expense, (ii) the Indemnifying Party shall cooperate with the Indemnified Party in the defense and settlement of such Claim in any manner reasonably requested by the Indemnified Party and (iii) the Indemnified Party shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, settle such Third Party Claim without soliciting the views of the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Party and giving them due consideration.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the The Indemnifying Party from whom such indemnification is soughtshall make any payment required to be made under this Article in cash and on demand. The failure Any payments required to be paid by any Indemnitee so to notify the an Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this AgreementArticle that are not paid within five (5) business days of the date on which such obligation becomes final shall thereafter be deemed delinquent, except to the extent that and the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result pay to the Indemnified Party, immediately upon demand, interest at the rate of ten percent (10%) per annum, not to exceed the maximum nonusurious rate allowed by applicable Law, from the date such payment becomes delinquent to the date of payment of such failuredelinquent sums, which interest shall be considered to be Damages of the Indemnified Party.
Appears in 1 contract
Procedures for Indemnification. Promptly after receipt by a party entitled to indemnification under Section 8.01 or Section 8.02 (athe “Indemnitee”) If a of written notice of the assertion or the commencement of any claim or demand is made against an Indemnitee by Action (or, in the case of any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification Uncertain Pre-COD Adjustment Item pursuant to this Agreement (a "Third Party Claim"Section 8.01(a)(i), such Indemnitee will notify the Indemnifying Party in writingpromptly upon, and in any event within ten (10) Business Days of such Uncertain Pre-COD Adjustment Items becoming quantifiable) with respect to any matter referred to in Section 8.01 or Section 8.02, the Indemnitee will give written notice describing such claim or Action in reasonable detail, detail in light of the Third Party Claim circumstances then known to the Indemnitee (including, in the case of an Uncertain Pre-COD Adjustment Item pursuant to Section 8.01(a)(i), the calculation of the Uncertain Pre-COD Adjustment Item) to the party obligated to indemnify Indemnitee (the “Indemnitor”), and thereafter will keep the Indemnitor reasonably promptly after becoming aware of such Third Party Claiminformed with respect thereto; provided, however, that failure of the Indemnitee to give timely provide written notice of any such notification claim or Action or to keep the Indemnitor reasonably informed as provided herein will not affect relieve the indemnification provided Indemnitor of its obligations hereunder except to the extent that the Indemnifying Party shall have demonstrated that it has been actually Indemnitor is prejudiced as thereby. If any Action will be commenced against any Indemnitee by a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforthird party, the Indemnifying Party Indemnitor will be entitled to participate in such Action and assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should , at the Indemnifying Party so elect Indemnitor’s sole expense; provided, however, that the Indemnitor will not have the right to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, Action if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect counsel for the Indemnitor could not adequately represent the interests of the Indemnitee because such interests could be in conflict with those of the Indemnitor; (ii) such litigation involves potential criminal liability or could reasonably be expected to have a material adverse effect on any other matter beyond the scope or limits of its Affiliatesthe indemnification obligation of the Indemnitor; or (iii) the Indemnitor will not have assumed the defense of the litigation in a timely fashion (but in any event within thirty (30) days of notice of such Action). If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, Indemnitor will assume the defense thereofof any Action, the Indemnitee will be entitled to participate in any Action at its expense, and the Indemnitor will not (settle such Action unless required the settlement will include as an unconditional term thereof the giving by law) admit any the claimant or the plaintiff of a full and unconditional release of the Indemnitee, from all liability with respect toto the matters that are subject to such Action and does not (A) include any sanction or restriction on the conduct of business by the Indemnitee or its Affiliates or (B) have any material adverse Tax consequences with respect to the Indemnitee or its Affiliates, or settle, compromise or dischargeotherwise will have been approved by the Indemnitee, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will approval not to be unreasonably withheld).
(d) Any claim on account of Damages which , conditioned or delayed. If the Indemnitor does not involve a Third Party Claim assume defense of any Action, then the Indemnitee shall have the right to defend, and be asserted by written notice given reimbursed for its reasonable cost and expense in regard to, the Action, with counsel selected by the Indemnitee (who shall be reasonably satisfactory to the Indemnifying Party from whom such indemnification is soughtIndemnitor). The failure by any Indemnitee so to notify To the Indemnifying Party will not relieve extent the Indemnifying Party from any liability which it may have to such Indemnitee under provisions of this AgreementSection 8.03 are inconsistent with Section 5.12(e), except Section 5.12(e) shall control with respect to the extent matters that are the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result subject of such failureinconsistency.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Eversource Energy)
Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) If a claim or demand The party claiming indemnification (the "Indemnified Party") shall promptly give notice to the party from whom the indemnification is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party claimed (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement of any claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (a "Third Party Claim"), i) the factual basis for such Indemnitee will notify the Indemnifying Party in writingclaim, and in reasonable detail, (ii) the amount of the Third Party Claim claim, if known or reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure estimable. Failure to give any such notification will prompt notice shall not affect the indemnification provided obligations hereunder except to the extent of actual prejudice.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have demonstrated that it has been actually prejudiced 30 days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said 30-day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee thereforsuch notice, the Indemnifying Party shall immediately pay to the Indemnified Party the full amount of the claim. If the Indemnifying 11 Party affirmatively rejects such claim within such 30-day period, the Indemnified Party will be free to seek judicial or other enforcement of its rights to indemnification under this Agreement.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense thereof (at of such claim, and the expense of Indemnified Party shall cooperate fully with the Indemnifying Party) with counsel selected , subject to reimbursement for any reasonable cost or expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partycooperate. If the Indemnifying Party assumes elects to assume control of the defense of any such Third third-party claim, the Indemnified Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense; provided that if the Indemnified Party reasonably determines in good faith that there exist actual or potential conflicts of interest that make representation by the same counsel inappropriate, the Indemnified Party shall be entitled to employ separate from counsel (but not more than one per jurisdiction) at the counsel employed by expense and cost of the Indemnifying Party. The Indemnifying Party will be liable for shall not, without the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure prior written consent of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party ClaimIndemnified Party, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or dischargeoffer to settle or compromise any such claim or demand unless (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates and (iii) any amounts owing from any Indemnified Party pursuant to such Third Party Claim without compromise or settlement are subject to full indemnification by the Indemnifying Party's prior written consent Party (which consent will not be unreasonably withheldhas acknowledged in writing its responsibility therefor and has demonstrated its financial ability to satisfy such obligation).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party from whom such indemnification is sought. The failure by does not elect to assume control or otherwise participate in the defense of any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementthird-party claim, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result be bound by the results obtained in good faith by the Indemnified Party with respect to such claim and shall be liable for all costs and expenses of defending such failureclaim incurred by Indemnified Party, including fees and disbursements of counsel.
Appears in 1 contract
Procedures for Indemnification. (a) If In order for a member of the Buyer Group or Seller Group, as the case may be, to be entitled to indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand is made against an Indemnitee by any Person who is not a third-party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Third-Party Claim"), such Indemnitee will indemnified party must notify the Indemnifying Party indemnifying parties in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly within ten (10) days after becoming aware receipt by such indemnified party of such Third written notice of the Third-Party Claim; providedPROVIDED, howeverHOWEVER, that the failure to give any such notification will provide timely and proper notice shall not affect limit the indemnification provided hereunder, except that the indemnification hereunder shall be reduced by the financial effect, if any, of such failure (and except that an indemnifying party shall not be liable for any expenses incurred during the period following such 10-day period in which the indemnified party shall have failed to give such notice). Thereafter, (i) the indemnified party shall promptly deliver to the extent indemnifying parties (A) copies of all notices and documents (including court papers) received by the Indemnifying indemnified party relating to the Third-Party Claim and (B) all reasonably available information and documentation necessary to support and verify the claim asserted, and (ii) the indemnifying parties shall have demonstrated be given reasonable access to the books and records in the possession or control of the indemnified party or any of its Affiliates that it has been actually prejudiced as a result of any indemnifying party reasonably determines to be related to, or reasonably necessary in the defense of, such failureThird-Party Claim.
(b) If a Third Third-Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforindemnified party, the Indemnifying Party indemnifying parties will be entitled entitled, at their own cost and expense, to participate in the defense thereof and, if they so choose, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel reasonably selected by the Indemnifying Party and reasonably satisfactory to the Indemniteeindemnifying parties. Should the Indemnifying Party so elect to assume the defense of a Third Party ClaimIf an indemnifying party assumes such defense, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own cost and expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party indemnifying parties, it being understood that the indemnifying parties shall control such defense and will not be liable to the indemnified party for any legal expenses incurred by the indemnified party subsequent to the assumption by an indemnifying party of the defense; provided, HOWEVER, that the indemnifying parties shall be liable for the reasonable fees of separate counsel for the indemnified party (which counsel shall be reasonably acceptable to the indemnifying parties) if, in the reasonable opinion of outside counsel for the indemnified party (which counsel and opinion shall be reasonably acceptable to the indemnifying parties), representation of the indemnifying parties and the indemnified party in such matter by one (1) counsel would create a conflict of interest such that representation of the indemnifying parties and the indemnified party in such matter by separate counsel is required under applicable ethical rules governing legal representation. In any event, an indemnifying party shall not be liable under this Agreement for the fees and expenses of more than one (1) firm of counsel employed by (and representing all of) the Indemnitee for any period during which the Indemnifying Party has failed indemnified parties. Whether or not an indemnifying party chooses to assume the defense thereof or failed to diligently conduct of any Third-Party Claim, all the parties hereto shall, and shall cause their respective Affiliates to, cooperate in the defense thereofor prosecution thereof and to in good faith retain and furnish such records, or if it does not expressly elect toinformation and testimony, or is not entitled toand attend such conferences, assume the defense thereof (includingdiscovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party hereto in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid)connection therewith. If the Indemnifying Party assumes the defense of an indemnifying party chooses to defend or prosecute any such Third Third-Party Claim, the Indemnifying Party will promptly supply indemnifying party shall be authorized to consent to a settlement of, or the Indemnitee copies entry of all correspondence and documents relating to or in connection with any judgment arising from, any such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Third-Party Claim, at or the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgmentjudgment arising from, such Third-Party Claim; PROVIDED, HOWEVER, that the indemnifying party shall be authorized to so consent without the prior written consent of the indemnified party only if (A) it shall pay or cause to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness thereof; (B) it shall not encumber any of the assets of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to indemnified party or agree to any settlementsignificant restriction or condition that would apply to such indemnified party or to the conduct of that indemnified party's business; (C) it shall obtain, compromise as a condition of any settlement or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claimother resolution, (x) that does not provide for the unconditional a complete and irrevocable release of the Indemnitee each indemnified party in respect of such claim; and its Affiliates (pursuant to a release which is reasonably satisfactory to the IndemniteeD) completely from all Liability such settlement or judgment shall not require any (x) admission of liability, fault or wrongdoing by any indemnified party or impose any significant non-monetary obligation on any indemnified party (such as, by way of example, and not in connection with such Third Party Claimlimitation, injunctive relief) or (y) admission or statement that provides for injunctive could reasonably be expected to materially impair, disparage or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any business reputation of its Affiliatesthe indemnified party. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) No indemnified party shall admit any liability with respect to, to or settle, settle or compromise (or discharge, such Third consent to the settlement of or entry of any judgment arising from) any Third-Party Claim without the Indemnifying Party's express prior written consent (which consent will not be unreasonably withheld)of the indemnifying party.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand for Damages (an “Indemnity Claim”), other than Third-Party Claims under Section 8.5(b) below, is to be made against by a Person entitled to indemnification under this Article 8 (an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying “Indemnified Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"”), such Indemnitee will notify party shall give written notice briefly describing the claim and the total monetary damages sought (each, a “Notice”) to Sellers’ Representative or Buyer, as applicable (each an “Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which gives rise to Damages for which indemnification may be sought under this Article 8. Any failure to submit any such notice of claim to the Indemnifying Party in writingshall not relieve any Indemnifying Party of any liability hereunder, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. The Indemnifying Party shall be deemed to have accepted the Notice and the Indemnifying Party shall be deemed to have demonstrated that it has been actually prejudiced as agreed to pay the Damages at issue if the Indemnifying Party does not send a result notice of such failuredisagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice. If the Indemnifying Party does not send a notice of disagreement to the Indemnified Party within thirty (30) calendar days after receiving the Notice, the Indemnifying Party shall promptly pay to the Indemnified Party the amount sufficient to pay the Damages. For the avoidance of doubt, Buyer shall only be required to send notices to and obtain the approval of the Seller’s Representative with respect to this Section 8.5.
(b) If a Third Party an Indemnity Claim is to be made by an Indemnified Party entitled to indemnification hereunder in respect of, arising out of or involving a claim made by any third party (each, a “Third-Party Claim”) against the Indemnified Party, the Indemnified Party shall give a Notice to the Indemnifying Party as soon as practicable after becoming aware of such Third-Party Claim. The failure of any Indemnified Party to give timely Notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party was actually prejudiced by such failure. After such Notice, if the Indemnifying Party acknowledges in writing to an Indemnitee Indemnified Party that the Indemnifying Party is liable and has indemnity obligations for any Damages resulting from any such Third-Party Claim, then the Indemnifying Party shall be entitled, if it so elects at its own cost, risk and expense, (i) to take control of the defense and investigation of such Third-Party Claim, (ii) to employ and engage attorneys of its own choice (provided that such attorneys are reasonably acceptable to the Indemnified Party) to handle and defend the same, unless the named parties to such action or proceeding include the Indemnified Party and the Indemnifying Party, and any such Indemnified Party unconditionally and irrevocably acknowledges has been advised in writing its obligation by counsel that there may be one or more legal defenses available to indemnify the Indemnitee therefor, the Indemnifying such Indemnified Party will be entitled that are different from or additional to assume the defense thereof (at the expense of those available to the Indemnifying Party) with counsel selected by , in which event such Indemnified Party shall be entitled, at the Indemnifying Party Parties’ cost, risk and reasonably satisfactory expense, to separate counsel of its own choosing, and (iii) to compromise or settle such claim, which compromise or settlement shall be made only with the Indemnitee. Should written consent of the Indemnifying Party so elect Indemnified Party, such consent not to assume be unreasonably withheld, provided that any such compromise or settlement shall provide for the defense absolute and unconditional release of a Third the Indemnified Parties from any Liability with respect to such Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of a Third-Party Claim (to the extent permitted above), the Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such Third-Party Claim 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 Third lawsuit or action and any appeal arising therefrom. The Parties shall cooperate with each other in any notifications to insurers. If the Indemnifying Party Claimfails to assume the defense of such claim within fifteen (15) calendar days after receipt of the Notice (whether as a result of its election not to assume such defense), each Indemnitee the Indemnified Party against which such claim has been asserted will have the right to participate in the defense thereof and to employ counselundertake, at its own the Indemnifying Parties’ cost, risk and expense, separate from the counsel employed by defense, compromise or settlement of such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Parties; provided, however, that such claim shall not be compromised or settled without the written consent of the Indemnifying Party. The Indemnifying Party will , which consent shall not be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid)unreasonably withheld. If the Indemnifying Indemnified Party assumes the defense of any such Third the claim, the Indemnified Party Claim, will keep the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully reasonably informed of all developments relating to or in connection with the progress of any such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlementdefense, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consentsettlement; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result may, at its own cost, participate in the investigation, trial and defense of such failurelawsuit or action and any appeal arising therefrom. The Indemnifying Party shall be liable for any settlement of any Third-Party Claim effected pursuant to and in accordance with this Section 8.5 and for any final judgment (subject to any right of appeal), and each Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any Damages by reason of such settlement or judgment subject to the limitations provided in this Article 8.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Primoris Services CORP)
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party pursuant to the provisions of Section 8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provision, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee by any Person who is not a indemnifying party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")the provisions of Section 8.2, promptly notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimcommencement thereof; provided, however, that failure to give any such notification will notice shall not affect the indemnifying party's obligation to provide indemnification provided hereunder except unless such failure actually prejudices the indemnifying party's ability to defend adequately such action. In case such action is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereformay wish, the Indemnifying Party will be entitled to assume the defense thereof thereof, with satisfactory counsel (at the expense of the Indemnifying Party) with counsel selected by indemnifying party's choice); provided, however, if the Indemnifying Party defendants in any action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably satisfactory concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemniteeindemnifying party, the indemnified party shall have the right, at its own expense, to select separate counsel to participate in the defense of such action on behalf of such indemnified party. Should After notice from the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee indemnified party pursuant to the provisions of such Section 8.2 for any legal or other expenses expense subsequently incurred by the Indemnitee such indemnified party in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided thatother than reasonable costs of investigation. No indemnifying party, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claimclaim or litigation, each Indemnitee will have the right to participate in the defense thereof and to employ counselshall, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate except with the Indemnifying Party in the defense thereof (such cooperation to be at the expenseconsent of each indemnified party, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of judgment or enter into any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that settlement which does not obligate include as an unconditional term thereof the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely indemnified party from all Liability liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureclaim or litigation.
Appears in 1 contract
Procedures for Indemnification. (a) An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (other than a Third-Party Claim which shall be governed by Section 9.2(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the Party that is or may be required pursuant to this Article IX to make such indemnification (the “Indemnifying Party Party”) in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) calendar days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually and materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If a Third An Indemnifying Party Claim shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the applicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is made against entitled to indemnification under this Article IX to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. After such notice from an Indemnifying Party to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Article IX, in the event that (i) an Indemnifying Party will be liable elects not to assume responsibility for defending a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest, as reasonably determined by counsel for the fees Indemnitee, between the Indemnifying Party and expenses the applicable Indemnitee(s) (including if both are parties to such Third-Party Claim), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim or (v) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material assets, such Indemnitee(s) shall be entitled to assume the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel employed of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) No Indemnitee may settle, compromise or admit liability with respect to any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to assume the defense thereof or failed of the Third-Party Claim, it shall not be a defense to diligently conduct any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the 30 quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 11.13, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by for any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party monetary or compensatory damages or Losses resulting from any liability which it may have to such Indemnitee under breach of this Agreement, except and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the extent that the foregoing other than under this Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Sources: Employee Matters Agreement
Procedures for Indemnification. (a) 11.5.1. If a claim or demand is made against any member of the Sellers Group or the Parent Group (each an "INDEMNITEE"), or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "THIRD PARTY CLAIM") as to which a party (the "Indemnifying PartyINDEMNIFYING PARTY") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; providedPROVIDED, howeverHOWEVER, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually and materially prejudiced as a result of such failure. It is hereby clarified that in case the Third Party Claim is based on Sections 11.2.1 or 11.2.2 or 11.2.4, 11.4.1 or 11.4.2, then the obligations set forth in this Section 11.5 shall apply to the Indemnifying Party solely in case such Third Party Claim is initiated during a period of 18 months following the Closing Date and the notice of such Third Party Claim is provided by the Indemnitee to the Indemnifying Party (and to the Escrow Agent, if applicable), other than claims for fraud.
(b) 11.5.2. If a Third Party Claim is made against an Indemnitee Indemnitee, and the Indemnifying Party unconditionally and irrevocably acknowledges agrees in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect elects to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided PROVIDED that, if (i) in any Indemnitee's reasonable judgment opinion of a legal counsel of the Indemnitee a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party; provided that the Indemnifying Party shall not be required to bear the fees and expenses of more than one counsel to all Indemnitees. If the Indemnifying Party assumes the defense of any such Third Party Claim, each the Indemnitee will 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. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, to assume the defense thereof (including, in including the case of a failure of the agreement by each Indemnifying Party to acknowledge its indemnification obligation indemnify the Indemnitee as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request reasonable updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees Indemnitee will reasonably fully cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no 11.5.3. No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; providedPROVIDED, however, that, without limiting that if the Indemnitee's rights set forth in this sentenceIndemnifying Party agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee may refuse to will agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional Claim which unconditionally and irrevocable release of irrevocably releases the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim; PROVIDED, (y) HOWEVER, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that provides for injunctive or other nonmonetary non-monetary relief adversely affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each an Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereofClaim, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
11.5.4. Notwithstanding anything to the contrary in Sections 11.5.1 to 11.5.3 above, if a claim is made by any Tax authority which, if successful, is likely to result in an indemnity payment to any member of the Parent Group pursuant to Section 11.2.4, Parent shall notify the Company of such claim (da "TAX CLAIM"), stating the nature and basis of such claim and the amount thereof, to the extent known. Failure to give such notice shall not relieve the Company from any liability which it may have on account of this indemnification, except to the extent that the Company is actually materially prejudiced thereby. The Company shall have the right, at its option, to participate in, but not control, the defense of such Tax Claim and to employ counsel of its choice, at its own cost and expense. The Sellers and Purchasers shall fully cooperate with each other in contesting any such Tax Claim, which cooperation shall include the retention and, upon the request of the respective party, the provision of records and information which are reasonably relevant to such Tax Claim and making representatives thereof available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. The Purchasers shall deliver at least ten (10) Business Days prior to the due date (taking into account any extension) for the filing of any Tax Returns, Tax exemption requests or similar filings to be made by the Purchasers in connection with the transactions contemplated hereunder, to the Company for review and comment and shall consider such comments in good faith. The Purchasers will promptly supply to the Company copies of all correspondence and documents relating to or in connection with such Tax Claim or any such Tax Returns, Tax exemption requests or similar filings, and keep the Company fully informed of all developments relating to or in connection therewith (including, without limitation, providing to the Company reasonable updates and summaries as to the status thereof).
11.5.5. Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually is reasonably expected to be prejudiced as a result of such failure. Any notice pursuant to this Section 11.5 will contain a statement, in prominent and conspicuous type, that if the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a 30-calendar-day period following the Indemnifying Party's receipt of notice of such claim, the claim will be conclusively deemed a liability of the Indemnifying Party. If the Indemnifying Party does not notify the Indemnitee prior to the expiration of a 30-calendar-day period following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice will be conclusively deemed a liability of the Indemnifying Party under this Agreement and the Indemnifying Party shall pay (with respect to the Sellers Group out of the Escrow Fund; except with respect to claims raising out of circumstances specified in Section 11.2.3 above or claims for fraud, which can be made from the Escrow Fund or otherwise) the amount of Damages subject to such claim to the Indemnitee on demand or, in the case of any notice in which the amount of the Damages subject to such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such Damages subject to such claim, as provided above, the Indemnifying Party and the Indemnitee will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 30th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will be free to pursue such remedies as may be available under this Agreement or applicable Law.
11.5.6. Notwithstanding anything to the contrary in this Section 11.5, any indemnification to be paid by to the Parent Group by Sellers shall be made out of the Escrow Fund up to the funds then existing in the Escrow Fund (with respect to claims related to Sections 11.2.1 and 11.2.2 and 11.2.4) and in accordance with the procedures specified in Section 11.3.1 through 11.3.7 and the limitations set forth in Section 11.6, provided nothing herein shall limit the indemnification rights of the Parent Group for indemnification under Section 11.2.3 or claims for fraud.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee by any Person who is not has determined has given or would reasonably be expected to give rise to a party to right of indemnification under this Agreement (other than a Third-Party Claim, which shall be governed by Section 4.07(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and who is not an Affiliate method of computation thereof, and containing a party reference to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to provisions of this Agreement (a "Third Party Claim"), in respect of which such right of indemnification is claimed by such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimor arises; provided, however, that the failure to give provide such notice shall not release the Indemnifying Party from any such notification will not affect the indemnification provided hereunder of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failure.
(b) If a Third Party Claim claim or demand is made against a ▇▇▇▇▇▇▇ Indemnitee or a Newco Indemnitee (each, an “Indemnitee”) by any Person who is not a party to this Agreement or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party that is or may be required pursuant to this Article IV or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within thirty (30) calendar days) after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that the failure to provide notice of any such Third-Party Claim pursuant to this sentence shall not release the Indemnifying Party unconditionally from any of its obligations except and irrevocably acknowledges in writing its obligation solely to indemnify the Indemnitee therefor, extent the Indemnifying Party will shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party or Parties shall not be entitled liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to assume give such notice). Thereafter, the defense thereof (at the expense of Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) with counsel selected Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(c) Other than in the case of any Liability being managed by a Party in accordance with any Ancillary Agreement or as provided in Section 4.08(a), an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is entitled to indemnification under this Article IV to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. Should the After such notice from an Indemnifying Party so elect to an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 4.06, in the event that: (i) an Indemnifying Party will elects not to assume responsibility for defending a Third-Party Claim; (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee; (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim; or (v) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee(s) shall be liable for entitled to assume the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) No Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to assume the defense thereof or failed of the Third-Party Claim, it shall not be a defense to diligently conduct any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, or does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 9.04, the Merger Agreement or any Ancillary Agreement, following the Closing, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IV shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or Losses arising out of or relating to, as the case may be, any Communications Liability or Excluded Liability), and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article IV against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Netscout Systems Inc)
Procedures for Indemnification. (a) If a Quanex shall, and shall cause the other Quanex Indemnitees to, notify the Surviving Entity in writing promptly (i) of any claim or demand is made against an for indemnification for which any Quanex Indemnitee by any Person who is not a party intends to seek indemnification from the Surviving Entity under this Agreement or (and who is not an Affiliate ii) after learning of a party any Third-Party Claim for which any Quanex Indemnitee intends to seek indemnification from the Surviving Entity under this Agreement. the Surviving Entity shall, and shall cause the other Spinco Indemnitees to, notify Quanex in writing promptly (i) as of any claim for indemnification for which any Spinco Indemnitee intends to which a party (the "Indemnifying Party") may be obligated to provide seek indemnification pursuant to from Quanex under this Agreement or (a "Third ii) after learning of any Third-Party Claim"), Claim for which any Spinco Indemnitee intends to seek indemnification from Quanex under this Agreement. The failure of any Indemnitee to give such Indemnitee will notify the notice shall not relieve any Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder its obligations under this Article IV except to the extent the that such Indemnifying Party is actually prejudiced by such failure to give notice. Such notice shall have demonstrated describe such indemnification claim or Third-Party Claim in reasonable detail considering the Information provided to the Indemnitee and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that it has been actually prejudiced as a result of claimed against or may be sustained by such failureIndemnitee.
(b) If a Third Except as otherwise provided in paragraph (c) of this Section 4.3, an Indemnifying Party Claim may, by notice to the Indemnitee and to Quanex, if the Surviving Entity is made against an the Indemnifying Party, or to the Indemnitee and the Surviving Entity, if Quanex is the Indemnifying Party, at any time after receipt by such Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify of such Indemnitee’s notice of a Third-Party Claim, undertake (itself or through another member of the Indemnitee therefor, Group of which the Indemnifying Party will be entitled to assume is a member) the defense thereof (or settlement of such Third-Party Claim, at the expense of the such Indemnifying Party) with ’s own expense and by counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the If an Indemnifying Party so elect to assume undertakes the defense of a Third any Third-Party Claim, the such Indemnifying Party will not be liable to shall control the investigation and defense or settlement thereof, and the Indemnitee for may not settle or compromise such Third-Party Claim, except that such Indemnifying Party shall not (i) require any legal Indemnitee, without its prior written consent, to take or other expenses subsequently incurred by the Indemnitee refrain from taking any action in connection with the defense thereof as long as the Indemnifying such Third-Party diligently conducts Claim, or make any public statement, which such defense; provided thatIndemnitee reasonably considers to be against its interests, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) without the prior written consent of the Indemnitee and of Quanex, if the Indemnitee is a Quanex Indemnitee, or the Indemnitee and of the Surviving Entity, if the Indemnitee is a Spinco Indemnitee, consent to any settlement that does not include as a part thereof an unconditional release of the relevant Indemnitees from Liability with respect to such Third-Party Claim or that requires the Indemnitee or any of its Representatives or Affiliates to make any payment that is not fully indemnified under this Agreement or to be subject to any non-monetary remedy. Subject to the Indemnifying Party’s control rights, as specified herein, the Indemnitees may participate in such investigation and defense, at their own expense. Following the provision of notices to the Indemnifying Party, until such time as an Indemnifying Party fails has undertaken the defense of any Third-Party Claim as provided herein, such Indemnitee shall control the investigation and defense or settlement thereof, without prejudice to provide reasonable assurance its right to seek indemnification hereunder.
(c) If an Indemnitee reasonably determines that there may be legal defenses available to it that are different from or in addition to those available to its Indemnifying Party which make it inappropriate for the Indemnifying Party to undertake the defense or settlement thereof, then such Indemnifying Party shall not be entitled to undertake the defense or settlement of such Third-Party Claim; and counsel for the Indemnifying Party shall be entitled to conduct the defense of such Indemnifying Party and counsel for the Indemnitee (upon request of selected by the Indemnitee) shall be entitled to conduct the defense of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoIndemnitee, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event which case the reasonable fees fees, costs and expenses of such separate counsel will for the Indemnitee (but not more than one counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If , it being understood that both such counsel shall cooperate with each other to conduct the defense or settlement of such action as efficiently as possible.
(d) In no event shall an Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of more than one counsel employed by the Indemnitee for all Indemnitees (in addition to local counsel and its own counsel, if any) in connection with any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereofone action, or if it does not expressly elect to, separate but similar or is not entitled to, assume the defense thereof (includingrelated actions, in the case same jurisdiction arising out of the same general allegations or circumstances of a failure of the Indemnifying Third-Party to acknowledge its indemnification obligation as aforesaid). Claim.
(e) If the Indemnifying Party assumes undertakes the defense or settlement of any such Third a Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee make available to the Indemnifying Party from whom such indemnification is sought. The failure by and its counsel all information and documents reasonably available to it which relate to any Indemnitee so to notify Third-Party Claim, and otherwise cooperate as may reasonably be required in connection with the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementinvestigation, except defense and settlement thereof, subject to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as terms and conditions of a result of such failuremutually acceptable joint defense agreement.
Appears in 1 contract
Sources: Distribution Agreement (Quanex Corp)
Procedures for Indemnification. (a) If Any Person making a claim for indemnification under this ARTICLE VI is referred to herein as an “Indemnified Party”. The Person from whom indemnification is sought is referred to herein as the “Indemnifying Party”. Promptly after receiving notice of any Proceeding, investigation, demand or demand is made other claim against an Indemnitee the Indemnified Party by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a third party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "“Third Party Claim"”), the Indemnified Party shall provide written notice of such Indemnitee will notify claim (any such written notice, an “Indemnification Notice”) to: (i) the Indemnifying Party in writingPurchaser subject to the indemnification claim, and in reasonable detail, of if the Third Party Claim reasonably promptly after becoming aware of arises under Section 6.2 and (ii) the Sellers’ Representative, if the Third Party Claim arises under Section 6.3. Each such Indemnification Notice shall describe in reasonable detail the applicable Third Party Claim, including the facts giving rise to such claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, however, that the failure to give any such notification will so notify an Indemnifying Party shall not affect relieve the indemnification provided Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party shall have demonstrated that it has been is actually prejudiced as a result of by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request.
(b) If a Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim is made against an Indemnitee at such Indemnifying Party’s expense, and the Indemnifying Party unconditionally and irrevocably acknowledges in writing at its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will option shall be entitled to assume the defense thereof within ten (at 10) Business Days after receipt of the expense of Indemnification Notice if the Indemnifying Party acknowledges in writing the Indemnifying Party) with counsel selected by ’s obligation to indemnify the Indemnifying Indemnified Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for against any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend Losses that may result from such Third Party Claim and provide indemnification by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with respect theretosuch defense; provided, that the Indemnified Party shall be entitled to participate in the defense of such Indemnitee will have the right Third Party Claim and to employ separate counsel to represent of its choice for such Indemnitee and in purpose; provided, that event the reasonable fees and expenses of such separate counsel will shall be paid borne by the Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE VII.
(c) Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment. Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), unless the relief (i) is not in respect of a Third Party Claim for Taxes, (ii) consists solely of money damages (all of which the Indemnifying Party shall pay) and (iii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto; provided, however, that if the Indemnified Party fails to consent to such settlement or compromise and such settlement or compromise does not include injunctive relief, the Liability of the Indemnifying Party with respect to such Third Party Claim under this Agreement shall be limited to the amount that would have otherwise been payable had the Indemnifying Party entered into such settlement or compromise.
(d) In all cases, the Indemnified Party shall provide its reasonable cooperation with the Indemnifying Party in defense of claims or litigation relating to Third Party Claims, including by making employees, information and documentation reasonably available. If the Indemnifying Party assumes shall not, within ten (10) Business Days of receiving the Indemnification Notice, notify the Indemnified Party that it shall assume the defense of any such Third Party Claim, each Indemnitee will have the right or fails to participate in the defense thereof and to employ counsel, at its own expense, separate defend or withdraws from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party ClaimClaim or the Indemnifying Party is any Seller and the claim(s) relate to or arise in connection with any Purchaser Defensible Matter, the Indemnified Party may defend against such matter in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Any of following shall constitute a “Purchaser Defensible Matter”: (i) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would materially injure the Indemnified Party’s future business prospects; (iii) the claim seeks an injunction or other equitable relief against the Indemnified Party, or (iv) the estimated Loss is less than (and would not cause the aggregate of all Losses to exceed) the Basket Amount.
(e) The Indemnified Party shall provide written notice of claim that is not a Third Party Claim to: (i) the Purchaser subject to the indemnification claim, if such claim arises under Section 6.2 and (ii) the Sellers’ Representative, if such claim arises under Section 6.3. Such claim shall describe in reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount or method of computation of the amount of such claim (if known); provided, that the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall also provide such other information with respect thereto as the Indemnifying Party may reasonably request. In the event that the Indemnifying Party does not notify the Indemnified Party that it disputes such claim within thirty (30) days from receipt of the claim notice, the Indemnifying Party will be deemed to have acknowledged liability for such claim and the Escrow Agent and/or the Sellers, as appropriate, shall promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with pay such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof)claim. If the Indemnifying Party is entitled to and chooses to defend a Third Party Claimdisputes the validity or amount of any such claim, at the request of the Indemnifying Party all shall so notify the Indemnitees will reasonably cooperate with the Indemnifying Indemnified Party in the defense thereof writing within thirty (such cooperation to be at the expense, including reasonable legal fees and expenses, 30) days after receipt of the Indemnifying Party)claim notice specifying in reasonable detail the points of disagreement. If any dispute is not resolved within thirty (30) days after the Indemnified Party receives a dispute notice, then either of such parties can initiate an action pursuant to Section 7.10.
(cf) Notwithstanding anything Subject to the contrary contained hereinthis ARTICLE VI, no Indemnifying Party will consent to within ten (10) days after any settlementfinal decision, compromise judgment or discharge award shall have been rendered by a Governmental Authority with competent jurisdiction (including the consent to entry and a resolution of any judgment) of any Third Party Claim without appeal therefrom and the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release expiration of the Indemnitee and its Affiliates (pursuant time in which to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect toappeal therefrom), or settlea settlement shall have been consummated, compromise or discharge, such Third the Indemnified Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that and the Indemnifying Party shall have demonstrated arrived at a mutually binding agreement, in each case, with respect to a claim hereunder (i) if the claim for indemnification was brought pursuant to Section 6.2, the indemnifying Purchaser shall pay or cause to be paid all sums due and owing to the Seller Indemnified Party in immediately available funds to an account specified by the Seller Indemnified Party and (ii) if the claim for indemnification was brought pursuant to Section 6.3, the Purchaser and the Sellers’ Representative shall cause the Escrow Agent to pay to the Purchaser (payable by wire transfer of immediately available U.S. funds in accordance with the written payment instructions furnished by the Purchaser to the Escrow Agent), from the Escrow Amount, any sums due and owing in accordance with this ARTICLE VI, and if the sums due and owing to the Purchaser Indemnified Party exceed the remaining Escrow Amount, the Indemnifying Party shall pay or cause to be paid all additional sums due and owing to the Purchaser Indemnified Party in immediately available funds to an account specified by the Purchaser Indemnified Party. Any of the Escrow Amount remaining, net of any of the amount of any outstanding, unresolved claims of Losses brought pursuant to Section 6.3 (the amounts set forth, the “Reserve Amounts”), shall automatically transfer to the Sellers’ Representative (for the benefit of the Sellers) and such funds shall be released and distributed to the Sellers’ Representative or its designee (for the benefit of the Sellers) after the date that it has been actually prejudiced is twenty (20) months following the Closing Date. The Reserve Amounts shall be disbursed by the Escrow Agent, promptly after the unresolved indemnification claims to which they relate are finally resolved in accordance with this ARTICLE VI as confirmed by a result joint written direction of such failurethe Sellers’ Representative and the Purchaser or a final, non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Orthopediatrics Corp)
Procedures for Indemnification. (a) If a claim or demand is made against An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee by any Person who is not has determined has given or would reasonably be expected to give rise to a party to right of indemnification under this Agreement (other than a Third-Party Claim which shall be governed by Section 5.07(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and who is not an Affiliate method of computation thereof, and containing a party reference to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to provisions of this Agreement (a "Third Party Claim"), in respect of which such right of indemnification is claimed by such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimor arises; provided, however, that the failure to give provide such notice shall not release the Indemnifying Party from any such notification will not affect the indemnification provided hereunder of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually materially prejudiced as a result of such failure.
(b) If a Third Party Claim claim or demand is made against an Entergy Indemnitee or a TransCo Indemnitee (each, an “Indemnitee”) by any Person who is not a party to this Agreement or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall notify the Party that is or may be required pursuant to this Article V or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim promptly (and in any event within thirty (30) calendar days) after receipt by such Indemnitee of written notice of the Third-Party Claim; provided, however, that the failure to provide notice of any such Third-Party Claim pursuant to this sentence shall not release the Indemnifying Party unconditionally from any of its obligations except and irrevocably acknowledges in writing its obligation solely to indemnify the Indemnitee therefor, extent the Indemnifying Party will shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party or Parties shall not be entitled liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to assume give such notice). Thereafter, the defense thereof (at the expense of Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) with counsel selected Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(c) Other than in the case of any Liability being managed by a Party in accordance with any Ancillary Agreement or as provided in Section 5.09(a), an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably satisfactory acceptable to the Indemniteeapplicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is entitled to indemnification under this Article V to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. Should the After such notice from an Indemnifying Party so elect to an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnittee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Section 5.07, in the event that (i) an Indemnifying Party will elects not to assume responsibility for defending a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest between the Indemnifying Party and the applicable Indemnitee(s), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim, (v) the Indemnitee’s exposure to Liability in connection with such Third-Party Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third-Party Claim taking into account the indemnification obligations hereunder or (vi) the party making such Third-Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material Assets, such Indemnitee(s) shall be liable for entitled to assume the fees defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and expenses of counsel employed make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) Unless the Indemnifying Party has failed to assume the defense thereof of the Third-Party Claim in accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to diligently conduct assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 11.04, the Merger Agreement or any Ancillary Agreement, absent fraud or intentional misconduct by an Indemnifying Party, the indemnification provisions of Damages which does not involve a Third Party Claim this Article V shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or Losses arising out of or relating to, as the case may be, any Transmission Liability or Excluded Liability), and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee foregoing other than under this Agreement, except to the extent that the Article V against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party under sections 8.1 or 8.2 of notice of the commencement of any action for which indemnification may be available under section 8.1 or 8.2 such indemnified party shall, if a claim or demand in respect thereof is to be made against an Indemnitee by any Person who is not a indemnifying party under such section, give notice to this Agreement (and who is not an Affiliate the indemnifying party of a party the commencement thereof, but the failure so to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party shall not relieve it of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, any liability that failure it may have to give any such notification will not affect the indemnification provided hereunder indemnified party except to the extent the Indemnifying Party indemnifying party demonstrates that the defense of such action is prejudiced thereby. In case any such action shall have demonstrated be brought against an indemnified party and it shall give notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforshall elect, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to such indemnified party and, after notice from the Indemnitee. Should the Indemnifying Party indemnifying party to such indemnified party of its election so elect to assume the defense of a Third Party Claimthereof, the Indemnifying Party will indemnifying party shall not be liable to the Indemnitee such indemnified party under such section for any legal fees of other counsel or any other expenses expenses, in each case subsequently incurred by the Indemnitee such indemnified party in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided thatthereof, if (i) in any Indemnitee's other than reasonable judgment a conflict costs of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim investigation and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees costs and expenses of such separate legal counsel, if the indemnified party and the indemnifying party are both parties to the action and the indemnified party has been advised by counsel will that there may be paid by such Indemnifying Partyone or more defenses available to it and not available to the indemnifying party. If the Indemnifying Party an indemnifying party assumes the defense of such an action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party's consent (which shall not be unreasonably withheld) unless (i) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its consent (which shall not be unreasonably withheld). If notice is given to an indemnifying part of the commencement of any action and it does not, within ten days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense thereof, the indemnifying party shall be bound by any determination made in such Third Party Claimaction or any compromise or settlement thereof effected by the indemnified party. Notwithstanding the foregoing, each Indemnitee will if an indemnified party determines in good faith that there is a reasonable probability that an action may materially and adversely affect it or its affiliates other than as a result of monetary damages, such indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise or settle such action, but the indemnifying party shall have the right to participate in the defense thereof such action and to employ counsel, at its own expense, separate from the counsel employed not be bound by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses any determination of counsel employed by the Indemnitee for an action so defended or any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim settlement thereof effected without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
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Procedures for Indemnification. (a) 8.3.1. If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) (a "THIRD PARTY CLAIM") as to which a party (the "Indemnifying INDEMNIFYING Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure and to such extent.
(b) 8.3.2. If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, to assume the defense thereof (including, in including the case of a failure of the agreement by each Indemnifying Party to acknowledge its indemnification obligation indemnify the Indemnitee as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no 8.3.3. No Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent, which will not be unreasonably withheld; provided, however, that, without limiting that if the Indemnitee's rights set forth in this sentenceIndemnifying Party agrees to indemnify the Indemnitee for a Third Party Claim, the Indemnitee may refuse to will agree to any settlement, compromise or discharge (w) that does not obligate of such Third Party Claim which the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) may recommend that does not provide for the unconditional unconditionally and irrevocable release of irrevocably releases the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim; provided, (y) however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge that provides for injunctive or other nonmonetary non-monetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each an Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation agrees to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereofClaim, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) 8.3.4. Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which that it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure and to such extent. If the Indemnifying Party does not notify the Indemnitee prior to the expiration of a 45-calendar-day period following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnitee under this Agreement, such claim specified by the Indemnitee in such notice will be conclusively deemed a liability of the Indemnifying Party under this Agreement and the Indemnifying Party shall pay the amount of Damages subject to such claim to the Indemnitee on demand or, in the case of any notice in which the amount of the Damages subject to such claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such Damages subject to such claim, as provided above, the Indemnifying Party and the Indemnitee will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will be free to pursue such remedies as may be available under this Agreement or applicable law.
8.3.5. The procedures set forth in this Section 8.3 (Procedures for Indemnification), shall not govern any claim or demand made under Section 8.1 (Indemnity by Shareholder) for any inaccuracy in the representations and warranties set forth in Section 5.9 (Tax Matters) or any claims made under Section 8.5 (Tax Indemnity).
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Procedures for Indemnification. (a) If Promptly after receipt by an indemnified party pursuant to the provisions of Section 8.1 or 8.2 of notice of the commencement of any action involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee by any Person who is not a indemnifying party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")the provisions of Section 8.1 or 8.2, notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of commencement thereof; but the omission to so notify such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party indemnifying party will not relieve the Indemnifying Party it from any liability which it may have to such Indemnitee under this Agreement, the indemnified party hereunder except to the extent that the Indemnifying Party indemnifying party was prejudiced by such failure to so notify. In case such action is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have demonstrated the right to participate in, and, to the extent that it has been actually prejudiced as may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party, or if there is a result conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such failure.action on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Section 8.1 or 8.2 for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (a) the indemnified party shall have employed counsel in accordance with the proviso of the preceding sentence, (b) the
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Procedures for Indemnification. (a) If a an Indemnified Party shall claim to have suffered Damages for which indemnification is available under Section 5.1(a) or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"5.1(b), such Indemnitee will as the case may be, the Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware writing of such Third Party Claimclaim as promptly as practicable, which written notice shall describe the nature of such claim, the facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party); provided, however, that the failure by the Indemnified Party to give any such notification will not affect the indemnification provided hereunder except to the extent so notify the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreement, the Indemnified Party hereunder except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice. In the case of a claim by a Buyer Indemnitee, such written notice shall be provided by the Indemnified Party to the Shareholders’ Representative, with a copy provided to the Stock Escrow Agent. In the event that within sixty (60) days after the receipt by the Indemnifying Party of such a written notice from the Indemnified Party, the Indemnified Party shall not have received from the Indemnifying Party a written objection to such claim, such claim shall be conclusively presumed and considered to have been assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party (and, in the case of a claim by a Buyer Indemnitee, the Escrow Agent) of a written notice from the Indemnified Party to such effect.
(b) If within the sixty (60) day period described in paragraph (a) above the Indemnified Party (and, in the case of claim by a Buyer Indemnitee, the Escrow Agent) shall have demonstrated that it has been actually prejudiced received from the Indemnifying Party a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then Buyer and the Shareholders’ Representative shall negotiate in good faith for a period of ten (10) Business Days from the date the Indemnifying Party receives such objection (such period is hereinafter referred to as a result the “Negotiation Period”). After the Negotiation Period, if Buyer and the Shareholders’ Representative still cannot agree on the claim, Buyer and the Shareholders’ Representative shall follow the procedures set forth in Section 7.9 below with respect to the resolution of such failurematter.
(c) Upon determination of the amount of a claim that is binding on both the Indemnifying Party and the Indemnified Party, the amount of such claim shall be paid within ten (10) Business Days of the date such amount is determined. If the Indemnifying Party responsible for payment of such claim is Buyer, such payment shall be made by wire transfer to the Shareholders’ Representative, who shall be responsible for distributing any such payment by Buyer to accounts of the Sellers in accordance with their respective percentages opposite the Sellers’ names on Section 2.1(e) of the Disclosure Schedule. If the Indemnifying Party responsible for payment of such claim is a Seller, such payment shall be made in accordance with Section 5.5(a) below.
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Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide The procedures for indemnification pursuant to this Agreement Article 8 will be as follows:
(a) The party claiming indemnification (the “Indemnified Party”) shall promptly give written notice to the party from whom indemnification is claimed (the “Indemnifying Party”) of any claim for Losses, whether arising between the parties or in connection with a "Third Party Claim")third-party claim made against the Indemnified Party, such Indemnitee will notify the Indemnifying Party in writingspecifying, and in reasonable detail, the facts and circumstances of and the Third Party Claim reasonably promptly after becoming aware basis for such claim, as then known by the Indemnified Party. If an indemnification claim hereunder relates to a third-party claim made against the Indemnified Party, written notice of such Third third-party claim shall be given by the Indemnified Party Claim; provided, however, that failure to the Indemnifying Party promptly (but in any event within fifteen (15) days after written notice of such third-party claim shall have been given to the Indemnified Party by such third party). Failure to give any such notification will prompt notice pursuant to this Section 8.4(a) shall not affect the Indemnifying Party’s indemnification provided obligations hereunder in the absence of material prejudice thereto (in which case the Indemnifying Party’s indemnification obligations shall only be reduced to the extent of such material prejudice).
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party will have thirty (30) days during which to make such investigation of the claim as the Indemnifying Party shall deem necessary or desirable. For the purposes of such investigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or the Indemnifying Party’s authorized Representative(s) the information relied upon by the Indemnified Party to substantiate the claim (except to the extent such information is privileged). If the Indemnified Party and the Indemnifying Party agree at or prior to the expiration of said H:818672 48 thirty (30)-day period (or any agreed upon extension thereof) to the validity and amount of such claim, or if the Indemnifying Party does not respond to such notice, the Indemnifying Party shall promptly pay to the Indemnified Party the full amount of the claim in accordance with Section 8.4(f). In the event the parties are unable to agree, either party may bring a Proceeding to resolve such dispute in accordance with Section 9.10.
(c) With respect to any claim by a third-party for which an Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the right, at its own expense, to participate in or, if the Indemnifying Party unconditionally and irrevocably acknowledges in writing its so elects, to assume control of the defense of such claim through counsel of the Indemnifying Party’s choice reasonably acceptable to the Indemnified Party by providing written notice within thirty (30) days following notice from the Indemnified Party acknowledging the Indemnifying Party’s obligation to indemnify the Indemnitee thereforIndemnified Party, and the Indemnifying Indemnified Party will be entitled to assume the defense thereof (at the expense of shall reasonably cooperate with the Indemnifying Party) with counsel selected , subject to reimbursement for reasonable and documented actual out-of-pocket expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimcooperate; provided, that the Indemnifying Party will not be liable entitled to control, and the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with Indemnified Party will be entitled to have sole control over, the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, or settlement of any claim if (i) in any Indemnitee's reasonable judgment such claim involves a criminal proceeding, action, indictment, allegation or investigation, (ii) a conflict of interest between the Indemnifying Party and the Indemnified Party exists in respect of other than ordinary conflicts that arise under this Agreement and the other Transaction Documents, (iii) such claim involves any customers of the Indemnified Party or its Affiliates, (iv) the Indemnifying Party has not agreed and acknowledged in writing (for the benefit of the Indemnified Party) its unqualified obligation to indemnify the Indemnified Party as provided hereunder with respect to such claim, subject to the limitations set forth in this Article 8, (vi) such claim seeks an injunction or other equitable relief against the Indemnified Party or any of its Affiliates or (iivii) any upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party fails failed or is failing to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to vigorously prosecute or defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyclaim. If the Indemnifying Party assumes elects to assume control of the defense of any such Third third-party claim, the Indemnified Party Claim, each Indemnitee will have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for shall not, without the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure prior written consent of the Indemnifying Indemnified Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation consent not to be at the expenseunreasonably denied, including reasonable legal fees and expensesdelayed, of the Indemnifying Partywithheld or conditioned).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlementsettle, compromise or discharge (including offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent to entry of any judgment) of any Third Party Claim without order, injunction or decree which would restrict the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise future activity or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release conduct of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Indemnified Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion if such settlement or compromise does not include an unconditional release of the Indemnitee, would otherwise adversely affect the Indemnitee Indemnified Party for any liability arising out of such claim or demand or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, related claim or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)demand.
(d) Any claim on account of Damages which If the Indemnifying Party does not involve a Third elect to assume control or otherwise participate in the defense of any third-party claim within thirty (30) days following notice from the Indemnified Party Claim shall be asserted by (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of the Indemnified Party to defend such claim), the Indemnified Party will (upon delivering written notice given by the Indemnitee to such effect to the Indemnifying Party from whom Party) have the right to undertake the defense, compromise or settlement of such indemnification is sought. The failure by any Indemnitee so to notify claim (all at the cost and expense of the Indemnifying Party), and the Indemnifying Party will be bound by the results obtained in good faith by the Indemnified Party with respect to such claim. The Indemnified Party will not relieve settle, compromise or offer to settle or compromise any such claim or demand on a basis which would result in the imposition of a consent order, injunction or decree which would restrict the future activity or conduct of the Indemnifying Party without the consent of the Indemnifying Party, such consent not to be unreasonably withheld, denied, conditioned or delayed.
(e) If any Buyer Group Member is entitled to recourse directly against any Seller pursuant to this Article 8 and is not able to recover the full amount of any such claim from such Seller, Buyers shall have the right to: H:818672 49
(i) if no Earn-Out Consideration has been paid, then withhold any liability which it may Earn-Out Consideration that becomes due, including the issuance of a number of Earn-Out Shares having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such withholding of Earn-Out Consideration from such Seller in satisfaction of any indemnification obligations hereunder; or
(ii) if any Earn-Out Shares have been issued, demand from such Seller the satisfaction of such claim through the delivery to Buyers of a number of Earn-Out Shares held by such Seller having an aggregate Earn-Out Share Value equal to the amount that such Buyer Group Member was unable to recover. Each Seller hereby agrees to any such delivery of Earn-Out Shares from such Seller to Buyers in satisfaction of any indemnification obligations hereunder and authorizes Buyers to transfer such Earn-Out Shares to Buyers or any of their Affiliates. Notwithstanding the foregoing, if a Seller fails to deliver such Earn-Out Shares in satisfaction of any indemnification obligations hereunder, without any further action by ▇▇▇▇▇▇, such Seller shall automatically forfeit all of such Seller’s rights, title and interest in and with respect to such Indemnitee under this AgreementEarn-Out Shares, except to and Buyers shall be deemed the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result owner of such failureEarn-Out Shares for all purposes, and Buyers agree to provide such Seller with written notice thereof promptly after any such forfeiture.
(f) Any indemnification payments made pursuant to this Article 8 shall be effected by wire transfer of immediately available funds to an account or accounts designated by the applicable Buyer Group Member or Seller Group Member, as the case may be, within three (3) Business Days after the determination thereof, whether pursuant to a final judgment, settlement or agreement among the parties.
Appears in 1 contract
Procedures for Indemnification. (a) An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (other than a Third-Party Claim which shall be governed by Section 9.2(b)), within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.
(b) If a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will shall notify the Party that is or may be required pursuant to this Article IX to make such indemnification (the “Indemnifying Party Party”) in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) calendar days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually and materially prejudiced as a result of such failurefailure (except that the Indemnifying Party or Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(bc) If a Third An Indemnifying Party Claim shall be entitled (but shall not be required) to assume, control the defense of, and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the applicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is made against entitled to indemnification under this Article IX to the applicable Indemnitees within thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim. After such notice from an Indemnifying Party to an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing of its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expenseexpense and, separate from in any event, shall reasonably cooperate with the counsel employed Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party. The ; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(d) Notwithstanding anything to the contrary in this Article IX, in the event that (i) an Indemnifying Party will be liable elects not to assume responsibility for defending a Third-Party Claim, (ii) there exists a conflict of interest or potential conflict of interest, as reasonably determined by counsel for the fees Indemnitee, between the Indemnifying Party and expenses the applicable Indemnitee(s) (including if both are parties to such Third-Party Claim), (iii) any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnifying Party shall not have employed counsel to represent the Indemnitee within thirty (30) calendar days after notice from the Indemnitee of such Third-Party Claim or (v) the party making such Third- Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its material assets, such Indemnitee(s) shall be entitled to assume the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel employed of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee for pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, however, that such access shall not require the Indemnifying Party to disclose any period during information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing attorney-client privilege with respect to such information or violate any applicable Law.
(e) No Indemnitee may settle, compromise or admit liability with respect to any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has failed to assume the defense thereof or failed of the Third-Party Claim, it shall not be a defense to diligently conduct any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or if it opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not expressly elect to, approve of the quality or is not entitled to, assume manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
(including, in f) In the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the shall consent to entry of any judgment) judgment or enter into any settlement of any Third the Third-Party Claim without the Indemnitee's prior written consent; providedconsent (not to be unreasonably withheld, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise conditioned or discharge (wdelayed) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant if the effect thereof is to a permit any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, does not release which is reasonably satisfactory to the Indemnitee) completely Indemnitee from all Liability in connection liabilities and obligations with respect to such Third Third-Party Claim, (y) that provides for injunctive Claim or other nonmonetary relief affecting the Indemnitee includes an admission of guilt or any of its Affiliates or (z) that, in the reasonable opinion liability on behalf of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(dg) Any claim on account Except as otherwise provided in Section 11.13, the indemnification provisions of Damages which does not involve a Third Party Claim this Article IX shall be asserted by written notice given by the sole and exclusive remedy of an Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by for any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party monetary or compensatory damages or Losses resulting from any liability which it may have to such Indemnitee under breach of this Agreement, except and each Indemnitee expressly waives and relinquishes any and all rights, claims or remedies such Person may have with respect to the extent that the foregoing other than under this Article IX against any Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureParty.
Appears in 1 contract
Sources: Employee Matters Agreement (Stevens Holding Company, Inc.)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by No party hereto will be liable for any Person who is not a party to Claim for indemnification under this Agreement (and who is not an Affiliate Article VIII unless written notice of a Claim for indemnification is delivered by the party to this Agreement) as to which a party seeking indemnification (the "“Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party"”) prior to the expiration of the applicable survival period, if any, set forth in Section 8.1. If any third party notifies the Indemnified Party with respect to any matter which may be obligated give rise to provide a Claim for indemnification pursuant to this Agreement (a "“Third Party Claim")”) against the Indemnifying Party under this Article VIII, such Indemnitee then the Indemnified Party will notify the Indemnifying Party promptly thereof in writing, writing and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 8.4 will describe with reasonable detail, specificity the Third Party Claim and the basis of the Indemnified Party’s Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforParty, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof with counsel of its choice. However, the Indemnified Party may continue to participate in (but not control) such defense at its own cost and expense, which costs and expenses shall not be subject to the expense indemnification provisions in this Article VIII unless the Indemnifying Party does not actually assume the defense thereof following notice of such election. If the Indemnifying Party does not assume the defense of such Third Party Claim, the Indemnified Party will have the right to undertake the defense of such Third Party Claim, by counsel or other representatives of its own choosing (subject to the limitations on the Indemnifying Party’s obligations to indemnify otherwise set forth in this Article VIII and in the definition of Losses in Section 1.1, and to the right of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of or opposition to such Third Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the Indemnified Party nor the Indemnifying Party will consent to the entry of any judgment or enter into any settlement or compromise of any Third Party Claim that might give rise to liability of another Party, in each case without such Party’s consent, which will not be unreasonably withheld or delayed; provided, however, the Indemnifying Party may settle or compromise a Third Party Claim, without the Indemnifying Party will not be liable to consent of the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided thatIndemnified Party, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim settlement or compromise is made only for monetary consideration, and (ii) any Indemnifying Party fails to provide reasonable assurance to all required payments are paid entirely by the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of elects to settle any such Third Party Claim, each Indemnitee will have and the right Indemnified Party refuses to participate in consent to such compromise or settlement, then the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure liability of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply be limited to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with amount offered by the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee, or an Indemnitee shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (and who is not or an Affiliate of thereof) (a party to this Agreement"Third Party Claim") as to which a party one or more parties (collectively, the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect -------- ------- the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefortherefor (subject to verification that any losses or costs in respect thereof constitute Damages and compliance with the other terms hereof), the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the 62 Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defensethereof; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee will shall have the right to employ separate counsel (which shall be reasonably satisfactory to the Indemnifying Party) and one local counsel to represent such Indemnitee and in that event the reasonable fees and expenses of each such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each the Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, at its own expenseexpense (except as otherwise provided in the preceding sentence), separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, to assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge including acknowledging its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, including providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will shall reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to If the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim (subject to verification that any losses or costs in respect thereof constitute Damages and is entitled to assume, and is diligently conducting, compliance with the defense thereofother terms hereof), the Indemnitee will agree to any settlement, compromise or discharge of such Third Party Claim which the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim and unconditionally and irrevocably releases the Indemnitee (and the other members of the Buyer Group or the Seller Group, as the case may be) completely from all Liability in connection with such Third Party Claim, provided, however, that, without the Indemnitee's prior written consent, the -------- ------- Indemnifying Party shall not consent to any settlement, compromise or discharge (including the consent to entry of any judgment), and the Indemnitee may refuse to agree to any such settlement, compromise or discharge that, in the reasonable opinion of the Indemnitee could reasonably be expected to materially and adversely affect the Indemnitee. If the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim, the Indemnitee shall not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by reasonably prompt written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will shall not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as by such failure. If the Indemnifying Party does not dispute its liability to the Indemnitee with respect to the claim made in such notice by notice to the Indemnitee prior to the expiration of a result 30- calendar-day period following the Indemnifying Party's receipt of notice of such failure.claim, the claim shall be conclusively deemed a liability of the Indemnifying Party under this Agreement. The Indemnifying Party shall pay the amount of such liability to the Indemnitee on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party has timely disputed its liability with respect to such claim, as provided above, the Indemnifying Party and the Indemnitee shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations by the 90th day after notice of such claim was given to the Indemnifying Party, the Indemnifying Party and the Indemnitee will resolve such dispute in accordance with Section 14.11. -------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee Indemnified Person, or if an Indemnified Person shall otherwise learn of an assertion, by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement“Third Party Claim”) as to which a party CTI or Shareholders (the "“Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")Agreement, such Indemnitee an Indemnified Person will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly in a prompt manner a reasonable amount of time after becoming aware of such Third Party ClaimClaim (the “Claim Notice”); provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure; provided, further, however, that in any event, such notification must be given within the particular survival period noted in Section 10.1 above to be eligible for indemnification.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforIndemnified Person, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the IndemniteeAudioCodes. Should the Indemnifying Party so elect to assume the defense and settlement of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee an Indemnified Person for any legal or other expenses subsequently incurred by the Indemnitee an Indemnified Person in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoclaim, such Indemnitee an Indemnified Person will have the right to employ separate counsel to represent such Indemnitee the Indemnified Person and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee An Indemnified Person will 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. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnitee an Indemnified Person for any period after the receipt of the Claim Notice during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the The Indemnifying Party will promptly supply to the Indemnitee AudioCodes copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee AudioCodes fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee AudioCodes on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees Indemnified Person will reasonably cooperate with the Indemnifying Party in the defense thereof if requested by the Indemnifying Party (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will not consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that which does not obligate include a provision whereby the Indemnifying plaintiff or claimant in the matter releases the relevant Indemnified Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect tothereto, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's AudioCodes’ prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee an Indemnified Person to the Indemnifying Party from whom such indemnification is sought. The failure and by any Indemnitee so to notify a claim upon the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced Indemnity Fund as a result of such failure.stated in Article V.
Appears in 1 contract
Procedures for Indemnification. (a) If Whenever a claim or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to for Liabilities shall arise for which a one party (the "Indemnifying Party"“Indemnitee”) may shall be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")hereunder, such Indemnitee will shall notify the Indemnifying Party other party (the “Indemnitor”) in writing, and in reasonable detail, writing within thirty (30) days of the Third Party Claim reasonably promptly after becoming aware first receipt of notice of such Third Party Claimclaim; provided, however, that the failure to give any such notification will notice as herein provided shall not affect relieve the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result Indemnitor of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforexcept to the extent that the Indemnitor shall have been prejudiced in its ability to defend such claim. Such notice shall describe the nature of such claim, the Indemnifying facts and circumstances that give rise to such claim and the amount of such claim if reasonably ascertainable at the time such claim is made, and if not then a good faith estimate thereof. If the Indemnitor shall be duly notified of such dispute and such dispute is not a Third Party will Claim, the parties shall attempt to settle and compromise the same, or if unable to do so within twenty (20) days of the Indemnitee’s delivery of notice of a dispute, the parties may seek whatever remedy they may have in Law or equity to enforce such indemnification obligations. Any rights of indemnification established by reason of such settlement, compromise or Action shall promptly thereafter be entitled paid and satisfied by the Indemnitor.
(b) Upon receipt by the Indemnitor of a notice from the Indemnitee with respect to any claim of a third party against the Indemnitee (a “Third Party Claim”), for which the Indemnitee seeks indemnification hereunder, provided that the Indemnitor has acknowledged in writing its indemnification obligations with respect to such Third Party Claim within thirty (30) days of the first receipt of such notice, the Indemnitor shall have the right to assume the defense thereof (of such Third Party Claim, at its cost and expense, with counsel reasonably satisfactory to the Indemnitee, and the Indemnitee shall cooperate to the extent reasonably requested by the Indemnitor in defense or prosecution thereof. If the Indemnitor in a timely basis elects to assume the defense of such Third Party Claim, the Indemnitee shall have the right to employ its own counsel in any such case, and the fees and expenses of such counsel shall be at the expense of the Indemnifying Party) with Indemnitee; provided that in the case that the Indemnitor assumes the defense of a Third Party Claim and Indemnitor’s legal counsel selected by determines that it has a conflict under applicable ethical or legal rules in representing both the Indemnifying Party Indemnitor and reasonably satisfactory the Indemnitee in such matter, then the Indemnitee shall have the right to employ its own counsel in such matter, and the Indemniteefees and expenses of such counsel shall be at the expense of Indemnitor. Should If the Indemnifying Party so elect to Indemnitor does not in a timely basis assume the defense of a Third Party ClaimClaim and/or disputes the Indemnitee’s right to indemnification, the Indemnifying Party will not be liable Indemnitee shall have the right to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with assume control of the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide through counsel of its choice, the reasonable costs of which shall be at the Indemnitor’s expense in the event that the Indemnitee’s right of indemnification with respect theretois ultimately established through settlement, such Indemnitee will compromise the Indemnitee, the Indemnitor shall not have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of settle any Third Party Claim for which indemnification has been sought and is available hereunder without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion consent of the Indemnitee, such consent not to be unreasonably withheld, conditioned or delayed, except for any such settlement that would otherwise adversely affect have an adverse effect upon Buyer or the Indemnitee or Sellers, in which case the party believing (in its sole discretion) that the settlement would have any of its Affiliatesadverse effect upon it must consent to such settlement. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for Indemnitor has not assumed the defense of a Third Party Claim and is entitled but the Indemnitee intends to assume, and is diligently conducting, or attempts to hold the defense thereofIndemnitor liable, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, have the right to settle such Third Party Claim without the Indemnifying Party's prior written consent (which of Indemnitor, such consent will not to be unreasonably withheld), conditioned or delayed.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Acceris Communications Inc)
Procedures for Indemnification. Promptly after receipt by an indemnified party pursuant to the provisions of Sections (ab) If or (c) of this Section 7 of notice of a third party claim or demand is made against an Indemnitee by the commencement of any Person who is not a third party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification action pursuant to this Agreement the provisions of such Sections 7(b) or (a "Third Party Claim"c), such Indemnitee will indemnified party shall promptly notify the Indemnifying Party in writing, and in reasonable detail, such indemnifying party of the Third Party Claim reasonably promptly after becoming aware of commencement thereof; but the omission to so notify such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party indemnifying party will not relieve the Indemnifying Party it from any liability which it may have to the indemnified party otherwise than hereunder unless the indemnified party is materially prejudiced thereby. In case such Indemnitee under this Agreementaction is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, except the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the Indemnifying Party defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have demonstrated reasonably concluded that there may be legal defenses available to it has been actually prejudiced as which are different from or additional to those available to the indemnifying party, or if there is a result conflict of interest which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such failureaction on behalf of such indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party pursuant to the provisions of such Sections 7(b) or (c) for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (1) the indemnified party shall have promptly employed counsel in accordance with the proviso of the preceding sentence, (2) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (3) the indemnifying party has authorized the employment of counsel for EXHIBIT 2.2 the indemnified party at the expense of the indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party (such consent not to be unreasonably withheld), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release from all liability in respect to such claim or litigation.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim Company Event of Breach or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate Wexford Event of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement Breach (a "Third Party's Event of Breach") occurs or is alleged and either the Company or the Wexford Indemnitees (a "Party ClaimIndemnitee")) asserts that the other party has become obligated to it pursuant to Section 7.1 or 7.2, or if any claim is begun, made or instituted as a result of which the other party may become obligated to a Party Indemnitee hereunder, such Party Indemnitee will notify shall give prompt notice to the Indemnifying other party. The Party in writing, and in reasonable detail, Indemnitee shall permit the other party (at its expense) to assume the defense of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimany claim; provided, however, that failure (a) the counsel for the other party who shall conduct the defense shall be reasonably satisfactory to the Party Indemnitee, (b) the Party Indemnitee may participate in such defense at its expense, and (c) the omission by the Party Indemnitee to give any such notification will notice as provided herein shall not affect relieve the other party of its indemnification provided hereunder obligation except to the extent that such omission results in a failure of actual notice to the Indemnifying Party shall have demonstrated that it has been actually prejudiced other party and the other party is materially damaged as a result of such failure.
(b) If a Third failure to give notice. Except with the prior written consent of the Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforIndemnitee, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimother party shall not, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claimclaim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of judgment or enter into any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) settlement that provides for injunctive or other nonmonetary relief affecting the Party Indemnitee or any that does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Party Indemnitee of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any release from all liability with respect toto such claim or litigation. In the event that the Party Indemnitee shall in good faith determine that the conduct of the defense of any claim subject to indemnification hereunder or any proposed settlement of any such claim by the other party might be expected to affect adversely the ability of the Party Indemnitee to conduct its business, or settlethat the Party Indemnitee may have available to it one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the other party in respect of such claim relating thereto, compromise the Party Indemnitee shall have the right at all times to take over and assume control over the defense, settlement, negotiations or dischargelitigation relating to any such claim at the sole cost of the other party (including without limitation reasonable attorneys' fees and disbursements and other amounts paid as the result of such claim); provided, however, that if the Party Indemnitee does so take over and assume control, the Party Indemnitee shall not settle such Third Party Claim claim without the Indemnifying Party's prior written consent (which of every other party, such consent will not to be unreasonably withheld).
(d) Any claim on account of Damages which . In the event that every other party does not involve a Third accept and continue the defense of any matter as provided above, the Party Claim Indemnitee shall have the full right to defend against any such claim and shall be asserted by written notice given by the Indemnitee entitled to the Indemnifying Party from whom settle or agree to pay in full such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureclaim.
Appears in 1 contract
Sources: Restructuring Agreement (Wahlco Environmental Systems Inc)
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by No party hereto will be liable for any Person who is not a party to Claim for indemnification under this Agreement (and who is not an Affiliate Article IX unless written notice of a Claim for indemnification is delivered by the party to this Agreement) as to which a party seeking indemnification (the "“Indemnified Party”) to the Party from whom indemnification is sought (the “Indemnifying Party"”) prior to the expiration of the applicable survival period, if any, set forth in Section 9.1. If any third party notifies the Indemnified Party with respect to any matter which may be obligated give rise to provide a Claim for indemnification pursuant to this Agreement (a "“Third Party Claim")”) against the Indemnifying Party under this Article IX, such Indemnitee then the Indemnified Party will notify the Indemnifying Party promptly thereof in writing, writing and in any event within 15 days after receiving notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless the Indemnifying Party is prejudiced thereby. All notices given pursuant to this Section 9.4 will describe with reasonable detail, specificity the Third Party Claim and the basis of the Indemnified Party’s Claim for indemnification. Once the Indemnified Party has given notice of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforParty, the Indemnifying Party will be entitled to participate therein and, to the extent desired, to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by of its choice, provided, however, the Indemnifying Indemnified Party may participate (but not control) such defense and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect after notice of its election to assume the defense of a Third Party Claimthereof, the Indemnifying Party will not be liable to the Indemnitee Indemnified Party for any legal or other expenses subsequently incurred by the Indemnitee Indemnified Party in connection with the defense thereof as long as of the Third Party Claim, other than reasonable costs of investigation, unless the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect does not actually assume the defense thereof following notice of such claim or (ii) any election. If the Indemnifying Party fails to provide reasonable assurance to does not assume the Indemnitee (upon request defense of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoClaim, such Indemnitee the Indemnified Party will have the right to employ separate counsel to represent such Indemnitee and in that event undertake the reasonable fees and expenses defense of such separate Third Party Claim, by counsel will be paid by such or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the limitations on the Indemnifying Party’s obligations to indemnify otherwise set forth in this Article IX and to the right of the Indemnifying Party to assume the defense of or opposition to such Third Party Claim at any time prior to settlement, compromise or final determination thereof).
(b) Neither the Indemnified Party nor the Indemnifying Party will consent to the entry or any judgment or enter into any settlement of any Third Party Claim that might give rise to liability of the other Party under this Article IX without such Party’s consent, which will not be unreasonably withheld or delayed. If the Indemnifying Party assumes the defense of elects to settle any such Third Party Claim, each Indemnitee will have and the right Indemnified Party refuses to participate in consent to such compromise or settlement, then the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure liability of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Indemnified Party will promptly supply be limited to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with amount offered by the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If 1. The procedures specified herein and Section 12.8 shall apply to any claims of third parties asserted in a claim governmental or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to judicial forum for which a party (the "Indemnifying Party") may intends to seek indemnification hereunder, other than Excess Environmental Costs which shall be obligated to provide indemnification pursuant to this Agreement dealt with as provided in Sections 12.3, 12.4, 12.5 and 12.6 (a "Third THIRD-PARTY CLAIM"). The claiming party is referred to hereinafter as the "INDEMNIFIED PARTY" and the other party is referred to hereinafter as the "INDEMNIFYING PARTY."
2. In the event of a Third-Party Claim"), such Indemnitee will the Indemnified Party shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably writing promptly after becoming aware the Indemnified Party has actual knowledge of such Third Party Claimclaims and the acts constituting the basis for such claim or threatened claim (the "NOTICE OF CLAIM"); provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee omission so to notify the Indemnifying Party will shall not relieve the Indemnifying Party from any liability which it the Indemnifying Party may have to such Indemnitee under this Agreement, the Indemnified Party except to the extent that the Indemnifying Party shall have demonstrated that it has been actually is materially prejudiced as a proximate result of the failure to give such failurenotice promptly. The Notice of Claim shall contain a summary of all material facts known to the Indemnified Party giving rise to such indemnification claim and the amount or an estimate of the amount of the liability arising therefrom if reasonably known.
3. The parties to this Agreement shall cooperate reasonably as necessary or appropriate to facilitate the defense of any third party claim or litigation subject hereto, including the provision of access to the counsel, accountants and other representatives of each party during normal business hours and access to all properties, personnel, and non-privileged books, tax records, contracts, commitments and other business records of such other party. The parties will furnish copies of all such documents as may reasonably be requested (certified, if requested). The party seeking cooperation and access shall reimburse the other party for all reasonable costs and expenses incurred by such party in providing cooperation and access, unless the party providing such cooperation and access is the Indemnifying Party.
4. If the Indemnifying Party fails to fulfill its obligations under this Article XII, the Indemnified Party, in addition to any and all other remedies available to it, may assume its own defense without forfeiting any rights or remedies it has under this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Diamond Home Services Inc)
Procedures for Indemnification. The respective obligations and liabilities of Seller and Purchaser (the “indemnifying party”) to the other (the “party to be indemnified”) under Sections 5.1 and 5.2 hereof with respect to claims resulting from the assertion of liability by third parties shall be subject to the following terms and conditions:
(a) If Within 20 days (or such earlier time as might be required to avoid prejudicing the indemnifying party’s position) after receipt of notice of commencement of any legal action evidenced by service of process or other legal pleading, or with reasonable promptness after the assertion in writing of any claim by a claim or demand is made against an Indemnitee by any Person who is not a third party, the party to this Agreement (and who is not an Affiliate be indemnified shall give the indemnifying party written notice thereof together with a copy of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")such claim, such Indemnitee will notify the Indemnifying Party in writingprocess or other legal pleading, and in reasonable detail, the indemnifying party shall have the right to undertake the defense thereof by representatives of its own choosing (but subject to the approval of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claimindemnified party which approval will not be unreasonably withheld or delayed) and at its own expense; provided, however, that the party to be indemnified may participate in the defense with counsel of its own choice and at its own expense and, provided further, that the failure of the party to be indemnified to give any such notification will timely notice shall not affect the right to indemnification provided hereunder except to the extent (and then only to the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of extent) the indemnifying party proves actual damages caused by such failure.
(b) If a Third Party Claim is made In the event that the indemnifying party, by the 30th day after receipt of notice of any such claim (or, if earlier, by the 10th day preceding the day on which an answer or other pleading must be served in order to prevent judgment by default in favor of the person asserting such claim), does not elect to defend against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforsuch claim, the Indemnifying Party party to be indemnified will be entitled (upon further notice to assume the defense thereof (indemnifying party) have the right to undertake the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying party and at the expense indemnifying party’s expense, subject to the right of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect indemnifying party to assume the defense of a Third Party Claimsuch claims in accordance with this Section 5.3(b) at any time prior to settlement, the Indemnifying Party will not be liable to the Indemnitee for any legal compromise or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense final determination thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything Anything in this Section to the contrary contained hereinnotwithstanding, no Indemnifying Party will consent to the indemnifying party shall not settle any settlement, compromise or discharge (including claim without the consent of the party to entry be indemnified unless such settlement involves only the payment of any judgment) money and the claimant provides to the party to be indemnified a release from all liability in respect of any Third Party Claim such claim. If the settlement of the claim involves more than the payment of money, the indemnifying party shall not settle the claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release consent of the Indemnitee and its Affiliates (pursuant party to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claimbe indemnified, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will shall not be unreasonably withheld).
(d) Any claim on account The party to be indemnified and the indemnifying party will each cooperate with all reasonable requests of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failureother.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hyperfeed Technologies Inc)
Procedures for Indemnification. (a) If A claim for indemnification for any matter not involving a claim or demand is made against an Indemnitee Claim may be asserted in good faith by any Person who is not written notice from a party or parties entitled to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party indemnification hereunder (the "Indemnifying Indemnified Party") may be obligated to the party or parties required to provide such indemnification pursuant to this Agreement (a the "Third Party ClaimIndemnifier"), provided that, notwithstanding anything else to the contrary in this Agreement, a claim for indemnification brought by a Parent Indemnified Party may be made by notice provided to the Stockholders' Representative. The Indemnified Party shall assert a claim for indemnification by providing a written notice to the Indemnifier stating in reasonable detail the nature and basis of such Indemnitee will notify the Indemnifying Party in writingclaim, and such notice shall be provided to the Indemnifier as soon as reasonably practicable after the Indemnified Party becomes aware that it has incurred or suffered a Loss; provided, however, that any failure to provide such notice in a timely manner as aforesaid, shall not relieve any Indemnifier from any liability that it may have to the Indemnified Party under this Article 10 except to the extent that the ability of such Indemnifier to defend such claim is materially prejudiced by the Indemnified Party's failure to give such notice in a timely manner, provided that, notwithstanding anything else to the contrary in this Agreement, a claim for indemnification brought by a Parent Indemnified Party may be made by notice provided to the Stockholders' Representative.
(b) An Indemnified Party will give the Indemnifier prompt written notice of any Legal Proceeding or demand instituted, or any claim asserted, by any third party (in each case, a "Claim") in respect of which the Indemnified Party is or may be entitled to indemnification hereunder, stating in reasonable detaildetail the nature and basis of such Claim, and such notice shall be provided to the Indemnifier as soon as reasonably practicable after the Indemnified Party becomes aware of the Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that any failure to give provide such notice in a timely manner as aforesaid, shall not relieve any such notification will not affect Indemnifier from any liability that it may have to the indemnification provided hereunder Indemnified Party under this Article 10 except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result ability of such failureIndemnifier to defend such claim is materially prejudiced by the Indemnified Party's failure to give such notice in a timely manner.
(bc) If a Third the Indemnifier provides written notice to the Indemnified Party stating that the Claim is made against an Indemnitee and a type for which the Indemnifying Indemnifier is responsible, then within ten (10) days after the Indemnifier's receipt of written notice from the Indemnified Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforof such Claim, the Indemnifying Party will be entitled to assume Indemnifier shall have the defense thereof (right, at the expense of Indemnifier's expense, to defend against, negotiate, settle or otherwise deal with such Claim and to have the Indemnifying Party) with counsel selected Indemnified Party represented by the Indemnifying Party and counsel, reasonably satisfactory to the Indemnitee. Should Indemnified Party, selected by the Indemnifying Indemnifier; provided that the Indemnified Party so elect may participate in any proceeding with counsel of its choice and at its expense; provided, further, that the Parent, at any time when it believes in good faith that any Claim is having or could reasonably be expected to have a Company Material Adverse Effect, may assume the defense and settlement of a Third Party Claim, the Indemnifying Party will not be liable such Claim in good faith subject to the Indemnitee terms of this Agreement, with counsel of its choice, and be fully indemnified therefor; provided, further, that neither the Indemnifier nor the Indemnified Party may enter into a settlement of any Claim without the written consent of the other party unless such settlement provides the Indemnified Party or the Indemnifier, as applicable, with a full release from such Claim and requires no more than a monetary payment for any legal or which the party not executing such settlement is fully indemnified hereunder.
(d) The parties will cooperate fully with each other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(ce) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including in the consent to entry event of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentencea Contest, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount provisions of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Section 7.5 shall govern.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
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Procedures for Indemnification. The procedures for indemnification shall be as follows:
(a) If a claim or demand is made against an Indemnitee by any Person who is not a The party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party claiming indemnification (the "“Indemnified Party”) shall promptly give notice to the party from whom the indemnification is claimed (the “Indemnifying Party"”) may be obligated to provide indemnification pursuant to this Agreement of any claim, whether between the parties or brought by a third party against the Indemnified Party, specifying (a "Third Party Claim"), i) the factual basis for such Indemnitee will notify the Indemnifying Party in writingclaim, and in reasonable detail, (ii) the amount of the Third Party Claim claim, if known or reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure estimable. Failure to give any such notification will prompt notice shall not affect the indemnification provided obligations hereunder except to the extent of actual prejudice.
(b) Following receipt of notice from the Indemnified Party of a claim, the Indemnifying Party shall have demonstrated that it has been actually prejudiced 30 days in which to make such investigation of the claim as a result the Indemnifying Party shall deem necessary or desirable. For the purposes of such failure.
(binvestigation, the Indemnified Party agrees to make available to the Indemnifying Party and/or its authorized representative(s) the information relied upon by the Indemnified Party to substantiate the claim. If a Third the Indemnified Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally agree at or prior to the expiration of said 30-day period (or any agreed upon extension thereof) to the validity and irrevocably acknowledges in writing its obligation amount of such claim, or if the Indemnifying Party does not respond to indemnify the Indemnitee thereforsuch notice, the Indemnifying Party will be entitled shall immediately pay to assume the defense thereof (at Indemnified Party the expense full amount of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Partyclaim. If the Indemnifying Party assumes affirmatively rejects such claim within such 30-day period, the Indemnified Party will be free to seek judicial or other enforcement of its rights to indemnification under this Agreement.
(c) With respect to any claim by a third party as to which the Indemnified Party is entitled to indemnification hereunder, the Indemnifying Party shall have the right at its own expense to participate in or, if it so elects, to assume control of the defense of such claim, and the Indemnified Party shall cooperate fully with the Indemnifying Party, subject to reimbursement for any reasonable cost or expense incurred by the Indemnified Party as the result of a request by the Indemnifying Party to so cooperate. If the Indemnifying Party elects to assume control of the defense of any such Third third-party claim, the Indemnified Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, of such claim at its own expense; provided that if the Indemnified Party reasonably determines in good faith that there exist actual or potential conflicts of interest that make representation by the same counsel inappropriate, the Indemnified Party shall be entitled to employ separate from counsel (but not more than one per jurisdiction) at the counsel employed by expense and cost of the Indemnifying Party. The Indemnifying Party will be liable for shall not, without the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure prior written consent of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party ClaimIndemnified Party, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or dischargeoffer to settle or compromise any such claim or demand unless (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the claim to all Indemnified Parties affected by the claim, (ii) the settlement agreement does not contain any sanction or restriction upon the conduct of any business by the Indemnified Party or its Affiliates and (iii) any amounts owing from any Indemnified Party pursuant to such Third Party Claim without compromise or settlement are subject to full indemnification by the Indemnifying Party's prior written consent Party (which consent will not be unreasonably withheldhas acknowledged in writing its responsibility therefor and has demonstrated its financial ability to satisfy such obligation).
(d) Any claim on account of Damages which does not involve If a Third Party Claim shall be asserted claim, whether between the parties or by written notice given by a third party, requires immediate action, the Indemnitee parties will make all reasonable efforts to reach a decision with respect thereto as expeditiously as possible.
(e) If the Indemnifying Party from whom such indemnification is sought. The failure by does not elect to assume control or otherwise participate in the defense of any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreementthird-party claim, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result be bound by the results obtained in good faith by the Indemnified Party with respect to such claim and shall be liable for all costs and expenses of defending such failureclaim incurred by Indemnified Party, including fees and disbursements of counsel.
Appears in 1 contract
Procedures for Indemnification. (a) If a an Indemnified Party shall claim to have suffered Damages for which indemnification is available under Section 5.1(a) or demand is made against an Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) 5.1(b), as to which a party (the "Indemnifying Party") case may be obligated (for purposes of this Section 5.2, regardless of whether such Indemnified Party is entitled to provide indemnification pursuant to this Agreement (receive a "Third Party Claim"payment in respect of such claim by virtue of Section 5.1(c)), such Indemnitee will the Indemnified Party shall notify the Indemnifying Party in writingwriting of such claim as promptly as practicable, and which written notice shall describe the nature of such claim in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware facts and circumstances that give rise to such claim and the amount of such Third Party Claimclaim if reasonably ascertainable at the time such claim is made (or if not then reasonably ascertainable, the maximum amount of such claim reasonably estimated by the Indemnified Party); provided, however, that the failure by the Indemnified Party to give any such notification will not affect the indemnification provided hereunder except to the extent so notify the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from of any liability which it may have to such Indemnitee under this Agreement, the Indemnified Party hereunder except to the extent that the Indemnifying Party demonstrates that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice. In the case of a claim by a Buyer Indemnitee, such written notice shall be provided by the Indemnified Party to the Members’ Representative, with a copy provided to the Escrow Agent. In the event that within thirty (30) days after the receipt by the Indemnifying Party of such a written notice from the Indemnified Party, the Indemnified Party shall not have received from the Indemnifying Party a written objection to such claim, such claim shall be conclusively presumed and considered to have been assented to and approved by the Indemnifying Party following receipt by the Indemnifying Party (and, in the case of a claim by a Buyer Indemnitee, the Escrow Agent) of a written notice from the Indemnified Party to such effect.
(b) If within the thirty (30) day period described in paragraph (a) above the Indemnified Party (and, in the case of claim by a Buyer Indemnitee, the Escrow Agent) shall have demonstrated that it has been actually prejudiced received from the Indemnifying Party a written notice setting forth the Indemnifying Party’s objections to such claim and the Indemnifying Party’s reasons for such objection, then Buyer and the Members’ Representative shall negotiate in good faith for a period of ten (10) Business Days from the date the Indemnified Party receives such objection (such period is hereinafter referred to as a result the “Negotiation Period”). After the Negotiation Period, if Buyer and the Members’ Representative still cannot agree on the claim, Buyer and the Members’ Representative shall follow the procedures set forth in Section 8.9 below with respect to the resolution of such failurematter.
(c) Upon determination of the amount of a claim that is binding on both the Indemnifying Party and the Indemnified Party, the amount of such claim shall be paid within ten (10) business days of the date such amount is determined. If the Indemnifying Party responsible for payment of such claim is Buyer, such payment shall be made by wire transfer to the Members’ Representative, who shall be responsible for distributing any such payment by Buyer to accounts of the GMT Members in accordance with their respective percentages opposite the GMT Members’ names on Section 2.1(e) of the Disclosure Schedule. If the Indemnifying Party responsible for payment of such claim is a GMT Member, such payment shall be made in accordance with this Article V including Section 5.5 below.
Appears in 1 contract
Sources: Equity Purchase Agreement (Mine Safety Appliances Co)
Procedures for Indemnification. (a) If Except as otherwise provided in Sections 6.1 and 6.2, subject to the limitations imposed by Section 8.1, promptly after receipt by an indemnified party pursuant to the provisions of this Article VI of notice of the commencement of any action, claim or proceeding involving the subject matter of the foregoing indemnity provisions, such indemnified party shall, if a claim or demand thereof is to be made against an Indemnitee by any Person who is not a indemnifying party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to the provisions of this Agreement (a "Third Party Claim")Article VI, promptly notify such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, indemnifying party of the Third Party Claim reasonably promptly after becoming aware of commencement thereof; but the omission to so notify such Third Party Claim; provided, however, that failure to give any such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party indemnifying party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party it from any liability which it may have to the indemnified party otherwise than hereunder unless, and only to the extent that, such Indemnitee under this Agreementomission shall have materially adversely affected the indemnifying party' s ability to defend such action, except claim or proceeding. In case such action, claim or proceeding is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent that it may wish, to assume the Indemnifying Party defense or conduct thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, (i) if the defendants in any action include both the indemnified party and the indemnifying party and the indemnified party shall have demonstrated reasonably concluded that there may be legal defenses available to it has been actually prejudiced as which are different from or additional to those available to the indemnifying party, or if there is a result conflict of interest which would reasonably be expected to prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party shall have the right to select separate counsel to participate in the defense of such failureaction on behalf of such indemnified party at the indemnifying party's expense and (ii) if the claim or proceeding involves a Tax or an audit, examination, investigation, appeal, suit or other proceeding involving the determination of any Tax, the indemnifying party shall not have the right to assume the defense or conduct thereof, which defense or conduct shall instead remain within the sole power and authority of the indemnified party except that the indemnified party shall not settle such matter without the written consent of the indemnifying party, which consent shall not be unreasonably withheld taking into the account the circumstances of the indemnified party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, unless (i) the indemnified party shall have employed counsel in accordance with the proviso reasonably of the preceding sentence, (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after the notice of the commencement of the action, or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party which consent shall not be unreasonably withheld, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the release from all liability in respect to such claim or litigation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Argan Inc)
Procedures for Indemnification. (a) THIRD PARTY CLAIMS. If a claim or demand is made against an IMS Indemnitee or a ST Indemnitee (each, an "Indemnitee") by any Person person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim")) as to which such Indemnitee is entitled to indemnification pursuant to this Agreement, such Indemnitee will shall notify the party which is or may be required pursuant to Section 3.1 or Section 3.2 hereof to make such indemnification (the "Indemnifying Party Party") in writing, and in reasonable detail, of the Third Party Claim reasonably promptly (and in any event within 15 business days) after becoming aware receipt by such Indemnitee of such written notice of the Third Party Claim; provided, however, that failure to give any such notification will shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
failure (bexcept that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within five business days) after the Indemnitee's receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. If a Third Party Claim is made against an Indemnitee and Indemnitee, the Indemnifying Party unconditionally shall be entitled to participate in the defense thereof and, if it so chooses and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and Party; provided that such counsel is not reasonably satisfactory objected to by the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as thereof; provided, that such Indemnitee shall have the Indemnifying Party diligently conducts right to employ counsel to represent such defense; provided thatIndemnitee if, if (i) in any such Indemnitee's reasonable judgment judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request which would make representation of the Indemnitee) of both such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect theretoparties by one counsel inappropriate, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that such event the reasonable fees and expenses of such separate counsel will shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such defense, the defense of any such Third Party Claim, each Indemnitee will shall have the right to participate in the defense thereof and to employ counsel, subject to the proviso of the preceding sentence, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party will shall be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed (other than during the period prior to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume time the defense thereof (including, in the case of a failure Indemnitee shall have given notice of the Indemnifying Third Party to acknowledge its indemnification obligation Claim as aforesaidprovided above). If the Indemnifying Party assumes so elects to assume the defense of any such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably shall cooperate with the Indemnifying Party in the defense thereof (such cooperation or prosecution thereof, including by providing or causing to be at the expenseprovided, including reasonable legal fees Records and expenses, witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate . If the Indemnifying Party to pay the full amount of Damages acknowledges in connection with such writing responsibility for a Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of then in no event will the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party's prior written consent; provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent (which consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party acknowledges in writing liability for a Third Party Claim, the Indemnitee will not be unreasonably withheld).
(d) Any claim on account agree to any settlement, compromise or discharge of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee; provided, however, that the Indemnitee may refuse to agree to any such settlement, compromise or discharge if the Indemnitee agrees that the Indemnifying Party's indemnification obligation with respect to such Third Party Claim shall have demonstrated not exceed the amount that it has been actually prejudiced would be required to be paid by or on behalf of the Indemnifying Party in connection with such settlement, compromise or discharge. If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as a result provided herein, such Indemnitee may compromise, settle or defend such Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such failureIndemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.
(c) The remedies provided in this Article III shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.
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Procedures for Indemnification. (a) If Whenever a claim or demand is made against an Indemnitee by any Claim shall arise for indemnification under Section 9.02 (other than under Section 9.02(b)(iv)), the Person who is not a party entitled to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party indemnification (the "Indemnifying Party"“INDEMNIFIED PARTY”) may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will shall promptly notify the Indemnifying Party in writing, and in reasonable detail, of from which indemnification is sought (the Third Party Claim reasonably promptly after becoming aware “INDEMNIFYING PARTY”) of such Third Party Claim and, when known, the facts constituting the basis of such Claim; provided, however, that in the event of a Claim for indemnification resulting from or in connection with a Claim by a third party, the Indemnified Party shall give such notice thereof to the Indemnifying Party not later than 10 Business Days prior to the time any response to the third party Claim is required, if possible, and in any event within 15 Business Days following receipt of notice thereof (provided, that failure to give notify the Indemnifying Party shall not relieve the Indemnifying Party of any such notification will not affect liability it may have to the indemnification provided hereunder Indemnified Party, except to the extent that the Indemnifying Party has been actually and materially prejudiced by such failure). Following receipt of notice of any such third party Claim, and unless counsel to the Indemnified Party shall have reasonably determined in good faith that the assumption of such defense by the Indemnifying Party would be inappropriate due to a conflict of interest, the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee the option, at its cost and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforexpense, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of a Third Party Claimsuch matter and to retain counsel (not reasonably objected to by the Indemnified Party) to defend any such claim or legal proceeding, and the Indemnifying Party will shall not be liable to the Indemnitee Indemnified Party for any legal fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with the defense thereof (except as long as the Indemnifying Party diligently conducts such defense; expressly provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemniteecontrary herein) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will 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. The Indemnifying Party will be liable for the other than reasonable fees and expenses of counsel employed by the Indemnitee Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct not assumed the defense thereof, or if it does not expressly elect to, or is not entitled to, assume . The Indemnified Party shall have the option of joining the defense thereof of such Claim (including, in which shall be at the case sole cost and expense of a failure of the Indemnified Party) with counsel not reasonably objected to by the Indemnifying Party and counsel for each party shall, to acknowledge its indemnification obligation as aforesaid)the extent consistent with such counsel’s professional responsibilities, cooperate with the other party and any counsel designated by that party. If In effecting the settlement or compromise of, or consenting to the entry of any judgment with respect to, any such Claim, the Indemnifying Party, or the Indemnified Party, as the case may be, shall act in good faith, shall consult with the other party and shall enter into only such settlement or compromise or consent to the entry of any judgment as the other party shall consent, such consent not to be unreasonably withheld, conditioned or delayed. An Indemnifying Party assumes shall not be liable for any settlement, compromise or judgment not made in accordance with the preceding sentence.
(b) Buyer shall promptly and diligently defend, prosecute or settle the matters described in Section 9.02(b)(iv) (including the defense of any members of the Seller Indemnified Group that are defendants or respondents with respect to such Third Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereofmatters). If Buyer’s counsel shall have advised Buyer in writing, in which case Buyer shall deliver a copy to the Indemnifying Indemnified Party, or if the Indemnified Party reasonably believes, that there is entitled a conflict of interest that could make it inappropriate under applicable standards of professional conduct to have common counsel, the Indemnified Party may retain its own counsel with respect to such defense and chooses Buyer shall pay the reasonable attorneys’ fees and expenses of counsel for such Indemnified Party. Buyer shall obtain the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, before entering into or making (or allowing the Companies to defend enter into or make), any settlement or compromise of the matters described in Section 9.02(b)(iv) if (i) such settlement or compromise does not include a Third full release of the Indemnified Party, (ii) such settlement or compromise includes any non-monetary remedy binding on the Indemnified Party Claim, or (iii) the Indemnified Party reasonably believes that Buyer will not have the ability to satisfy fully its obligations pursuant to Section 9.02(b)(iv) at the request time of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)settlement or compromise.
(c) Notwithstanding anything After the Closing Date, Seller and Buyer shall grant each other (or their respective designees), and Buyer shall cause the Companies to grant to Seller (or its designees), access at all reasonable times to all of the information, books and records relating to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth Companies in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assumepossession, and is diligently conducting, shall afford such party the defense right (at such party’s expense) to take extracts therefrom and to make copies thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that reasonably necessary to implement the Indemnifying Party provisions of, or to investigate or defend any Claims arising under, this Agreement. Further, after the Closing Date, Buyer shall have demonstrated that it has been actually prejudiced cause the Companies to grant to Seller (or its designees) the access and right to take extracts and make copies described in the preceding sentence for such other purposes as a result of such failureSeller may reasonably request.
Appears in 1 contract
Procedures for Indemnification. (a) If As used herein, an “Indemnified Party” means a claim or demand is made against an Indemnitee by any Person party seeking indemnification pursuant to ARTICLE 11, and the term “Indemnifying Party” means the party who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant under ARTICLE 11. The Indemnified Party agrees to this Agreement (a "Third Party Claim"), such Indemnitee will notify give the Indemnifying Party prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in writing, and in reasonable detail, respect of the Third Party Claim reasonably promptly after becoming aware of such Third a third party (a “Third-Party Claim; provided”) of which it has knowledge, however, that failure to give any for which such notification will not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume indemnification under this ARTICLE 11. In the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense case of a Third Third-Party Claim, the Indemnifying Party will not have the right to direct, through counsel of its own choosing, the defense or settlement of any such Third-Party Claim at its own expense. In such case the Indemnified Party may participate in such defense, but in such case the expenses of the Indemnified Party will be liable to the Indemnitee for any legal or other expenses subsequently incurred paid by the Indemnitee in connection with the defense thereof as long as Indemnified Party. The Indemnified Party will promptly provide the Indemnifying Party diligently conducts with access to the Indemnified Party’s records and personnel relating to any such defense; provided that, if (i) Third-Party Claim during normal business hours and will otherwise cooperate with the Indemnifying Party in any Indemnitee's reasonable judgment a conflict of interest exists in respect the defense or settlement of such Third-Party Claim, and the Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs and expenses incurred in providing such access, personnel and cooperation. Upon assumption of the defense of any such Third-Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of any claim or demand arising from such Third-Party Claim, unless the Indemnifying Party consents in writing to such payment (iiwhich consent will not be unreasonably withheld) any or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such liability. No such Third-Party Claim may be settled by the Indemnifying Party without the written consent of the Indemnified Party, which consent will not be unreasonably withheld. If the Indemnifying Party fails to provide reasonable assurance defend or fails to prosecute or withdraws from such defense, then the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Indemnified Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event undertake the reasonable fees and expenses of such separate counsel will be paid by such defense or settlement thereof, at the Indemnifying Party’s expense. If the Indemnifying Indemnified Party assumes the defense of any such Third Third-Party ClaimClaim pursuant to this ARTICLE 11 and proposes to settle such Third-Party Claim prior to a final judgment thereon or to forgo appeal with respect thereto, each Indemnitee then the Indemnified Party will give the Indemnifying Party prompt written notice thereof and the Indemnifying Party will 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. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to settlement or assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes reassume the defense of any such Third Third-Party Claim, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. 9.5.1 Each “Indemnified Party” (aIndemnified Party shall be defined to include either the Seller and the Owners or in the alternative, the Purchaser, as the context so requires) If a claim or demand is made against an Indemnitee by any Person who is not a shall promptly give notice hereunder to the indemnifying party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide indemnification pursuant to this Agreement (a "Third Party Claim"), such Indemnitee will notify the Indemnifying Party in writing, and in reasonable detail, of the Third Party Claim reasonably promptly after becoming aware of any claim as to which recovery may be sought against the indemnifying party because of the indemnity in this Section, and, if such Third Party Claimindemnity shall arise from the claim of a third party, shall permit the indemnifying party to assume the defense of any such claim and any litigation or other proceeding resulting from such claim; provided, howeverthat any Indemnified Party may, that in any event, at its own expense, monitor and participate in, but not control, the defense of any such claim or litigation. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of an Indemnified Party to give any such notification will not affect the indemnification provided hereunder except notice (or by delay by an Indemnified Party in giving such notice) unless, and then only to the extent that, the Indemnifying Party rights and remedies of the indemnifying party shall have demonstrated that it has been actually prejudiced as a result of the failure to give, or delay in giving, such failurenotice. The notice required hereunder shall specify the basis for the claim for indemnification to the extent ascertainable at the time of the notice. Failure by an indemnifying party to notify an Indemnified Party of its election to defend any such claim or action by a third party within ten (10) days after notice thereof shall have been given to the indemnifying party shall be deemed a waiver by the indemnifying party of its right to defend such claim or action. Nothing herein shall be deemed to prevent an Indemnified Party from making a contingent claim for indemnification hereunder, provided the Indemnified Party has reasonable grounds to believe that the claim or demand for indemnification will be made and sets forth the estimated amount of such claim to the extent then ascertainable. Notwithstanding anything to the contrary in this Agreement, no claim for indemnification may be brought under this Section 9 unless such claim is asserted in writing within one (1) year following the end expiration of the representations and warranties, except for claims arising from fraud, willful misconduct, or breaches of representations and warranties which expressly survive longer pursuant to Section 6.27.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges 9.5.2 The indemnifying party shall not, in writing its obligation to indemnify the Indemnitee therefor, the Indemnifying Party will be entitled to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so elect to assume the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment (other than a Third Party Claimjudgment of dismissal on the merits without costs) or enter into any settlement, except with the Indemnifying Party will written consent, which consent shall not be liable unreasonably withheld, of the Indemnified Party. Any such settlement or judgment must include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Indemnified Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists release from all liability in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. litigation.
9.5.3 If the Indemnifying Party assumes indemnifying party shall not, after receipt of notice from the Indemnified Party, assume the defense of any such Third Party Claim, each Indemnitee will have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed claim by the Indemnifying Party. The Indemnifying Party will be liable for the fees and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof a third party or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claimlitigation resulting therefrom, the Indemnifying Indemnified Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to may defend against such claim or litigation in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries manner as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, of the Indemnifying Party)it deems appropriate.
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise or discharge (including the consent to entry of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim, (x) that does not provide for the unconditional and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Reliance Global Group, Inc.)
Procedures for Indemnification. (a) If As used herein, an "INDEMNIFIED PARTY" means a claim or demand is made against an Purchaser Indemnitee by any Person who is not a party to this Agreement (and who is not an Affiliate of a party to this Agreement) as to which a party (the "Indemnifying Party") may be obligated to provide seeking indemnification pursuant to this Agreement Section 10.2 hereof or a Seller Indemnitee seeking indemnification pursuant to Section 10.3 hereof. The Indemnified Party agrees to give the other party ("INDEMNITOR") prompt written notice of any event, or any claim, action, suit, demand, assessment, investigation, arbitration or other proceeding by or in respect of a third party (a "Third THIRD PARTY CLAIM") of which it has knowledge, for which such Indemnified Party Claim"is entitled to indemnification under this Article X (including in any case copies of any summons, complaint or other pleading which may have been served on it and any written claim, demand, invoice, billing or other document evidencing or asserting the same), such Indemnitee will notify . No delay on the Indemnifying part of an Indemnified Party in writing, and in reasonable detail, giving the Indemnitor notice of the a Third Party Claim reasonably promptly after becoming aware of such Third Party Claim; provided, however, that failure to give shall relieve the Indemnitor from any such notification will not affect obligation hereunder unless the indemnification provided hereunder except to the extent the Indemnifying Party shall have demonstrated that it has been actually Indemnitor is prejudiced as a result of such failurethereby.
(b) If a Third Party Claim is made against an Indemnitee and the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee thereforWithin twenty days of delivery of such written notice, the Indemnifying Party will be entitled to assume the defense thereof (Indemnitor may, at the expense of the Indemnifying Party) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnitee. Should the Indemnifying Party so Indemnitor, elect to assume take all necessary steps properly to contest any Third Party Claim or to prosecute such Third Party Claim to conclusion or settlement; provided, that without the defense prior written consent of an Indemnified Party, the Indemnitor will not enter into any settlement of a Third Party ClaimClaim which would lead to liability or create any financial or other obligation on the part of such Indemnified Party for which such Indemnified Party is not indemnified hereunder. If the Indemnitor makes the foregoing election, the Indemnifying an Indemnified Party will have the right to participate at its own expense in all proceedings. If the Indemnitor does not be liable to make such election or if the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party Indemnitor fails to provide take reasonable assurance steps necessary to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to diligently defend such Third Party Claim and provide indemnification with respect theretowithin twenty days after receiving notice from the Indemnified Party that the Indemnified Party believes that the Indemnitor has failed to take such steps, such Indemnitee will have an Indemnified Party shall be free to handle the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the prosecution or defense of any such Third Party Claim, each Indemnitee will have take all necessary steps to contest the right Third Party Claim or to participate in prosecute such Third Party Claim to conclusion or settlement satisfactory to such Indemnified Party at the defense thereof sole cost and to employ counsel, at its own expense, separate from expense of the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the Indemnitor (including reasonable attorney's and expert's fees and expenses of counsel employed by and court and arbitration costs), will notify the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (including, in the case of a failure Indemnitor of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense progress of any such Third Party Claim, will permit the Indemnifying Party Indemnitor, at the sole cost of the Indemnitor, to participate in such prosecution or defense and will promptly supply provide the Indemnitor with reasonable access to all relevant information and documentation relating to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed prosecution or defense thereof. In any case, the party not in control of all developments relating to or in connection with such the Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will reasonably cooperate with the Indemnifying Party other party in the defense thereof (such cooperation to be at the expense, including reasonable legal fees and expenses, conduct of the Indemnifying Party).
(c) Notwithstanding anything to the contrary contained herein, no Indemnifying Party will consent to any settlement, compromise prosecution or discharge (including the consent to entry defense of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third Party Claim. Notwithstanding the foregoing, if an Indemnified Party is offered a written settlement proposal by a third party that has as its sole component the payment of money by the Indemnified Party and the Indemnitor recommends to the Indemnified Party in writing that it accept such settlement proposal (xthe "SANCTIONED SETTLEMENT") that does not provide and the Indemnified Party refuses to accept such settlement proposal, in such event if the ultimate settlement terms agreed to by the Indemnified Party with such third party or the final monetary damages award against the Indemnified Party (either, a "FINAL SETTLEMENT AMOUNT"), is greater than the amount of the Sanctioned Settlement, the Indemnified Party shall be responsible for the unconditional differential between the Final Settlement Amount and irrevocable release of the Indemnitee Sanctioned Settlement and its Affiliates (pursuant to a release which is reasonably satisfactory the Indemnitor's liability shall be limited to the Indemnitee) completely from all Liability in connection with such Third Party Claim, (y) that provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates or (z) that, amount specified in the reasonable opinion of the Indemnitee, would otherwise adversely affect the Indemnitee or any of its Affiliates. If each Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify the Indemnitee for a Third Party Claim and is entitled to assume, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Sanctioned Settlement.
(d) Any claim on account of Damages which does not involve a Third Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failure.
Appears in 1 contract
Procedures for Indemnification. (a) If a claim or demand is made against an Indemnitee by any Person who is not a party Party to this Agreement (and who is not or an Affiliate of a party to this AgreementParty (a “Third-Party Claim”) as to which a party (the "Indemnifying Party") may such Indemnitee is or reasonably expects to be obligated entitled to provide indemnification pursuant to this Agreement (a "Third Party Claim")or any Ancillary Agreement, such Indemnitee will shall notify the Indemnifying Party in writing, and in reasonable detail, of the Third Third-Party Claim reasonably promptly (and in any event within thirty (30) days) after becoming aware receipt by such Indemnitee of such Third written notice of the Third-Party Claim; provided, however, that the failure to give provide notice of any such notification will Third-Party Claim pursuant to this sentence shall not affect release the indemnification provided hereunder Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have demonstrated that it has been actually prejudiced as a result of such failurefailure (except that the Indemnifying Party shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice). Such notice must describe the Third Party Claim in reasonable detail, to the extent known to the Indemnitee, or include copies of all notice and documents (including court papers) received by the Indemnitee relating to the Third Party Claim. Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) days) after the Indemnitee’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim.
(b) If An Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of and settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the Indemnitee, if it gives written notice of its intention to do so (including a Third statement that the Indemnitee is entitled to indemnification under this Article IX) to the applicable Indemnitees within thirty (30) days of the receipt of notice from such Indemnitees of the Third-Party Claim is made against an Indemnitee and Claim; provided that the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation shall admit, prior to indemnify assuming such defense, that, if the Indemnitee thereforfacts presented with respect to such Third-Party Claim are true, then the Indemnifying Party will shall be entitled responsible for indemnifying the Losses that the Indemnified Party may incur or suffer arising out of, resulting from, in the nature of or caused by such Third-Party Claim, to the extent provided in this Article IX. Failure of the Indemnifying Party to respond within such thirty (30) day period shall be deemed to be an election by the Indemnifying Party not to assume the defense thereof (at the expense of the Indemnifying Party) with counsel selected by for such Third-Party Claim. If the Indemnifying Party and reasonably satisfactory elects or is deemed pursuant to the Indemniteeimmediately preceding sentence to elect not to assume such defense then the Indemnitee that is the subject of such Third-Party Claim shall be entitled to continue to conduct and control the defense of such Third-Party Claim. Should the After a notice from an Indemnifying Party so elect to an Indemnitee of its election to assume the defense of a Third Third-Party Claim, the Indemnifying Party will not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof as long as the Indemnifying Party diligently conducts such defense; provided that, if (i) in any Indemnitee's reasonable judgment a conflict of interest exists in respect of such claim or (ii) any Indemnifying Party fails to provide reasonable assurance to the Indemnitee (upon request of the Indemnitee) of such Indemnifying Party's financial capacity to defend such Third Party Claim and provide indemnification with respect thereto, such Indemnitee will shall have the right to employ separate counsel to represent such Indemnitee and in that event the reasonable fees and expenses of such separate counsel will be paid by such Indemnifying Party. If the Indemnifying Party assumes the defense of any such Third Party Claim, each Indemnitee will have the right to participate in (but not control) the defense thereof and to employ counseldefense, compromise or settlement thereof, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party will be liable for the fees cost and expenses of counsel employed by the Indemnitee for any period during which the Indemnifying Party has failed to assume the defense thereof or failed to diligently conduct the defense thereof, or if it does not expressly elect to, or is not entitled to, assume the defense thereof (includingexpense and, in the case of a failure of the Indemnifying Party to acknowledge its indemnification obligation as aforesaid). If the Indemnifying Party assumes the defense of any such Third Party Claimevent, the Indemnifying Party will promptly supply to the Indemnitee copies of all correspondence and documents relating to or in connection with such Third Party Claim and keep the Indemnitee fully informed of all developments relating to or in connection with such Third Party Claim (including, without limitation, providing to the Indemnitee on request updates and summaries as to the status thereof). If the Indemnifying Party is entitled to and chooses to defend a Third Party Claim, at the request of the Indemnifying Party all the Indemnitees will shall reasonably cooperate with the Indemnifying Party in such defense and make available to the defense thereof (Indemnifying Party all witnesses and information in such cooperation to be at the expense, including reasonable legal fees and expenses, of Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the good faith judgment of the Indemnitee, result in the loss of any existing privilege with respect to such information or violate any applicable Law (provided that the Parties have cooperated in good faith and taken all steps reasonably available to avoid the loss of such privilege or the violation of such Law, including by entering into any appropriate agreements or undertakings or by making appropriate modifications to the information disclosed so as to disclose as much of its relevant substance as possible).
(c) Notwithstanding anything to the contrary contained hereinin this Section 9.5, no in the event that an Indemnifying Party will consent elects not to any settlement, compromise or discharge (including assume the consent to entry defense of any judgment) of any Third Party Claim without the Indemnitee's prior written consent; provided, however, that, without limiting the Indemnitee's rights set forth in this sentence, the Indemnitee may refuse to agree to any settlement, compromise or discharge (w) that does not obligate the Indemnifying Party to pay the full amount of Damages in connection with such Third a Third-Party Claim, (xii) that does not provide for there exists a conflict of interest or potential conflict of interest between the unconditional Indemnifying Party and irrevocable release of the Indemnitee and its Affiliates (pursuant to a release which is reasonably satisfactory to the Indemnitee, (iii) completely from all any Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee, (iv) the Indemnitee’s exposure to Liability in connection with such Third Party Claim, Claim is reasonably expected to exceed the Indemnifying Party’s exposure in respect of such Third Party Claim taking into account the indemnification obligations hereunder or (yv) that provides for injunctive or other nonmonetary relief affecting the party making such Third Party Claim is a Governmental Authority with regulatory authority over the Indemnitee or any of its Affiliates material Assets, such Indemnitee shall be entitled to control the defense of such Third-Party Claim, at the Indemnifying Party’s cost and expense, with counsel of such Indemnitee’s choosing, which counsel must be reasonably acceptable to the Indemnifying Party. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses and information in such Indemnifying Party’s possession or (z) thatunder such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee; provided, however, that such access shall not require the Indemnifying Party to disclose any information the disclosure of which would, in the reasonable opinion good faith judgment of the IndemniteeIndemnifying Party, would otherwise adversely affect result in the Indemnitee loss of any existing privilege with respect to such information or violate any applicable Law (provided, that the Parties have cooperated in good faith and taken all steps reasonably available to avoid the loss of such privilege or the violation of such Law, including by entering into any appropriate agreements or undertakings or by making appropriate modifications to the information disclosed so as to disclose as much of its Affiliatesrelevant substance as possible). If each the Indemnifying Party unconditionally and irrevocably acknowledges in writing its obligation to indemnify has assumed the Indemnitee for defense of a Third Party Claim but the Indemnitee shall in good faith determine that such Indemnitee and is entitled the Indemnifying Party have actual or potential differing defenses or conflicts of interest between them that make joint representation inappropriate, then the Indemnitee shall have the right to assumeemploy separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, and is diligently conducting, the defense thereof, the Indemnitee will not (unless required by law) admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party's prior written consent (which consent will not be unreasonably withheld)Party shall bear the reasonable fees and expenses of one firm of such counsel for all Indemnitees.
(d) Any claim on account No Party may settle or compromise any Third-Party Claim for which either Party is seeking to be indemnified hereunder without the consent of Damages which the other Party (not to be unreasonably withheld, conditioned or delayed), unless the settlement or compromise is solely for monetary damages, does not involve any findings of determination of wrongdoing or violation of Law by the other Party and provides for a Third full, unconditional and irrevocable release of the other Party from all Liability in connection with the Third-Party Claim. If an Indemnifying Party has failed to assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim shall be asserted by written notice given by the Indemnitee to the Indemnifying Party from whom such indemnification is sought. The failure by any Indemnitee so to notify the Indemnifying Party will not relieve the Indemnifying Party from any liability which it may have to such Indemnitee under this Agreement, except to the extent that the Indemnifying Party shall have demonstrated was not consulted in the defense thereof, that it has been actually prejudiced such Indemnifying Party’s views or opinions as a result to the conduct of such failuredefense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.
Appears in 1 contract
Sources: Separation and Distribution Agreement (ASB Hawaii, Inc.)