Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company. (b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). (c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Securities Purchase Agreement (Rockwell Automation Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person or Governmental Authority against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for, or Action including equitable or injunctive relief or any claim that would impose criminal liability or damages, and reasonably satisfactory the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim or Action. Notwithstanding the foregoing, Buyer shall assume the defense of the Tendered Claims, but in each case only to the extent such tender does not adversely affect available insurance coverage under applicable policies. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified PartyParty for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of such Third Party Claim that wrongdoing, (ii) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the Indemnified Party from all liability in connection with respect of such Third Party Claim, and which releases (iii) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third other than solely the payment of money damages for which the Indemnified Party Claimwill be indemnified hereunder. Whether or not If the Indemnifying Indemnified Party assumes the defense of a any Third Party Claim, the Indemnified Party shall not admit not, without the prior written consent of the Indemnifying Party, enter into any liability settlement or compromise or consent to the entry of any judgment with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the consent of the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) The indemnification required hereunder in respect of a Third Party Claim owing by an Indemnifying Party shall be made by payment of the amount of actual Losses in connection therewith within five Business Days after receipt by the Indemnifying Party of notice of such Losses.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The party seeking indemnification (the “Indemnified Party”"INDEMNIFIED PARTY") to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to give the party against from whom indemnity indemnification is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly after receipt by such Indemnified Party of written notice of any claim, demand, assessment, action, suit or proceeding to which the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained indemnity set forth in this Article 10 shall apply only to breaches of representationsAgreement applies. If the document evidencing such claim or demand is a court pleading, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party shall give such notice within 10 days of receipt of such pleading, and otherwise shall give such notice within 30 days of receipt the date it receives notice of such claim. If the Indemnified Party's request for indemnification arises from the claim of a third party, the written notice shall permit the Indemnifying Party to assume the control of any such claim, or any litigation resulting from such claim. Failure by the Indemnifying Party to notify the Indemnified Party of the commencement its election to defend a complaint by a third party within five days of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected notice shall be a waiver by the Indemnifying Party and reasonably satisfactory of its right to the Indemnified Party. If respond to such complaint and, within 20 days after notice thereof, shall be a waiver by the Indemnifying Party assumes of its right to assume control of the defense of such Third Party Claimaction. Notwithstanding the Indemnifying Party's assumption of the defense of such third-party claim or demand, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel third party claim or demand at its own expense. The Indemnified Party shall be at the expense of the Indemnified Party. If furnish the Indemnifying Party assumes the defense of any Third Party ClaimParty, in reasonable detail, all information the Indemnified Party may have with respect to any such third-party claim and shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party and its representatives all witnesses, pertinent records, records and other similar materials and information which are reasonably required in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by defense of such third-party claim and shall otherwise cooperate with and assist the Indemnifying PartyParty in the defense of such third-party claim. If the Indemnifying Party assumes does not assume control of the defense of any Third Party Claimsuch third-party claim or litigation resulting therefrom, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim defend against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim or litigation in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failuremanner as it may reasonably deem appropriate.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Wisconsin Services Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) Party to ---------- be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person person against the Indemnified Party (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to must notify the party against whom indemnity is sought Indemnifying Party in writing of the Third Party Claim (the “Indemnifying Party”a "Claim Notice") promptly after following receipt by such Indemnified Party of written notice of the Third Party Claim, which notification, to be a valid Claim in accordance with Section 10.6. The failure to provide such noticeNotice, must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; provided, however, that failure to give such -------- ------- notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been prejudiced by as a result of such failure. For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party copies of all other notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably -------- ------- objected to by the Indemnified Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses incurred by the Indemnified Party in connection with the defense thereof, except as provided below. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the reasonable fees and expenses of such counsel shall be at the expense of employed by the Indemnified PartyParty (provided that the incurrence of such fees and expenses of counsel was reasonably necessary to respond timely to legal process) for any period after the Claim Notice is given during which the Indemnifying Party has not assumed the defense thereof if and to the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party assumes does not assume the defense of any a Third Party Claim within 30 days after the giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to the Third Party Claim, the Indemnifying Party shall be liable to the Indemnified Party shall cooperate with for all fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnifying Party in is responsible to indemnify for such defense and make available Third Party Claim; provided, however, such counsel is not reasonably objected to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any chooses to defend a Third Party Claim, all the Indemnified Party Parties shall agree cooperate in the defense thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend of records and that by its terms obligates the Indemnifying Party information which are relevant to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld).
(c) In . If the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve assumes the defense of a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall deliver notice agree to any settlement, compromise or discharge of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying a Third Party from any of its obligations under this Article 10 except to the extent Claim that the Indemnifying Party is prejudiced may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such failureThird Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Franklin Electronic Publishers Inc)
Procedures. (ai) In order for a Purchaser Indemnitee the event that any Legal Proceeding shall be threatened or Company Indemnitee instituted in respect to which indemnification may be sought by one party hereto from another party under the provisions of this Section 10.12, the party seeking indemnification (the “Indemnified PartyIndemnitee”) shall, reasonably promptly after acquiring actual knowledge of such threatened or instituted Legal Proceeding, cause written notice in reasonable detail of such threatened or instituted Legal Proceeding and which is covered by this indemnification, to be entitled forwarded to any the other party from which indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party is being sought (a “Third Party ClaimIndemnitor”), such Indemnified Party shall deliver notice thereof to provided, however, that the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticenotice as of any particular date as aforesaid will not affect any rights to indemnification hereunder, except to the extent, and only to such extent, that such failure to provide such notice actually and materially prejudices the Indemnitor’s ability to adequately defend such Legal Proceeding.
(ii) In the event of the initiation of any Legal Proceeding against an Indemnitee by a third party, the Indemnitor shall have the absolute right after the receipt of the notice described in Section 10.12(c)(i), at its option and at its own expense, to be represented by counsel of its choice, and (subject to Section 10.12(c)(iii)) to defend against, negotiate, settle or otherwise deal with any Legal Proceeding or demand that relates to any Purchaser’s Losses, indemnified against hereunder, and, in such event, the Indemnitee will reasonably cooperate with the Indemnitor and its representatives in connection with such defense, negotiation, settlement or dealings (and the Indemnitee’s costs and expenses arising therefrom or relating thereto shall constitute Purchaser’s Losses, if the Indemnitee is the Purchaser); provided, however, shall not release that the Indemnifying Party from Indemnitee may directly participate in any such Legal Proceeding so defended with counsel of its obligations under this Article 10 choice at its own expense, except that, if the Indemnitor fails to take reasonable steps necessary to defend diligently such third party claim within 15 business days after receiving written notice from the Indemnitee that the Indemnitee reasonably believes the Indemnitor has failed to take such steps or if the Indemnitor has not undertaken fully to indemnify the Indemnitee in respect of all such Purchaser’s Losses, relating to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubtmatter and as required hereunder, the indemnification provisions Indemnitee may assume its own defense, and, in such event (a) the Indemnitor will be liable for all Purchaser’s Losses, reasonably paid or incurred in connection therewith, and procedures contained (b) the Indemnitor shall, in this Article 10 shall apply only to breaches of representationsany case, warranties reasonably cooperate, at its own expense, with the Indemnitee and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyits representatives in connection with such defense.
(biii) The Indemnifying Party Without the prior written consent of the Indemnitee, which shall have not be unreasonably withheld, the rightIndemnitor will not enter into any settlement of any third party claim which would lead to Liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder or which would otherwise adversely affect the Assets or the Business. If a firm offer is made to settle a third party claim without leading to Liability or the creation of a financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification hereunder and the Indemnitor desires to accept and agree to such offer, upon the Indemnitor will give written notice to the Indemnified Party Indemnitee to that effect. If the Indemnitee notifies the Indemnitor that it does not consent to such firm offer within 10 calendar days after its receipt of such notice from the Indemnitor, the Indemnitee may continue to contest or defend such third party claim and, in such event, the maximum Liability of the Indemnitor as to such third party claim will not exceed the amount of such settlement offer, plus the Purchaser’s Losses, reasonably paid or incurred by the Indemnitee through the end of such 10-calendar day period.
(iv) After any final judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction and the time in which to appeal therefrom has expired, or a settlement shall have been consummated, or the Indemnitee and the Indemnitor shall have arrived at a mutually binding agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitee shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter, and the Indemnitor shall pay all of the sums so owing to the Indemnitee by wire transfer or certified or bank cashier’s check within 30 days after the date of receipt such notice. Any and all Purchaser’s Losses other than those described in the preceding sentence (including Purchaser’s Losses incurred in the absence of notice from any threatened or pending Legal Proceeding, or Purchaser’s Losses incurred after any such Legal Proceeding has been threatened or instituted but prior to the Indemnified Party rendering of any final judgment or award in connection therewith), shall be paid by the Indemnitor on a current basis, and, without limiting the generality of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claimforegoing, the Indemnified Party Indemnitee shall have the right to employ separate counsel invoice the Indemnitor for such Purchaser’s Losses, as frequently as it deems appropriate, and the amount of any such Purchaser’s Losses, which are described or listed in any such invoice shall be paid to participate in the defense thereofIndemnitee, but by wire transfer or certified or bank cashier’s check, within 30 days after the fees and expenses date of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)invoice.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee Promptly after receipt by an Indemnified Person or Company Indemnitee (the “---------- Indemnified Party”) to be entitled to any indemnification provided for Party under this Agreement as a result Section 6 of a Indemnified Liability or a claim or demand made by notice of the commencement of any Person against the Indemnified Party action (a “Third Party Claim”including any governmental action), such Indemnified Person or Indemnified Party shall shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver notice thereof to the indemnifying party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of a written notice of the Third Party Claim in accordance with Section 10.6. The failure commencement thereof, and the indemnifying party shall have the right to provide such noticeparticipate in, howeverand, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubtindemnifying party so desires, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to jointly with any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimindemnifying party similarly noticed, to assume control of the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party. If , as the Indemnifying Party assumes the defense of such Third Party Claim, the case may be; provided that an Indemnified Person or Indemnified Party shall have the right to employ separate retain its own counsel and to participate in the defense thereof, but with the fees and expenses to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such counsel in such proceeding. The Company shall pay reasonable fees for only one separate legal counsel for the Investors, and such legal counsel shall be at selected by the expense Investors holding a majority of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information Registrable Securities included in the Indemnified Party’s possession or under Registration Statement to which the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6relates. The failure to provide deliver written notice to the indemnifying party within a reasonable time after the threat or commencement of any such notice, however, action shall not release relieve such indemnifying party of any liability to the Indemnifying Indemnified Person or Indemnified Party from any of its obligations under this Article 10 Section 6, except to the extent that the Indemnifying Party indemnifying party is prejudiced in its ability to defend such action. The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as such failureexpense, loss, damage or liability is incurred and is due and payable.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Syquest Technology Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee Each party entitled to indemnification under Section 4 hereof (the “"INDEMNIFIED PARTY") shall give notice to the party required to provide indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party”) Party has actual knowledge of any claim as to which indemnity may be entitled sought, and shall permit the Indemnifying Party to assume the defense of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a such claim or demand made any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by any Person against the Indemnified Party (a “Third Party Claim”whose approval shall not unreasonably be withheld), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of may participate in such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the such Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, 's expense (unless the Indemnified Party shall have been advised by counsel that actual or potential differing interests or defenses exist or may exist between the right to employ separate counsel Indemnifying Party and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If , in which case such expense shall be paid by the Indemnifying Party), and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party assumes of its obligations under Section 4 hereof unless such failure to give notice is materially prejudicial to the Indemnifying Party. No Indemnifying Party, in the defense of any Third Party Claimsuch claim or litigation, the Indemnified Party shall cooperate shall, except with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense consent of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party shall deliver notice of a release from all liability in respect to such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureor litigation.
Appears in 1 contract
Sources: Registration Rights Agreement (Marketing Specialists Corp)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee an indemnified party (the “Indemnified PartyINDEMNIFIED PARTY”) to be entitled to any indemnification provided for under this Agreement Agreement, such Indemnified Party shall, within twenty (20) days following the discovery of the matters giving rise to any Loss, notify the indemnifying party (the “INDEMNIFYING PARTY”) in writing of its claim for indemnification for such Loss, specifying in reasonable detail the nature of such Loss and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, all information and documentation reasonably requested by the Indemnifying Party with respect to such Loss; provided, however, that failure to make such delivery shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a Indemnified Liability or result of such failure. If the indemnification sought pursuant hereto involves a claim or demand made by a third party (which shall not include any Person of the Sellers or any of their Affiliates or Purchaser or its Affiliates) against the Indemnified Party (a “Third Party ClaimTHIRD PARTY CLAIM”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except shall be entitled to participate in the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement defense of such Third Party ClaimClaim and, if it so chooses, to assume the defense thereof at the expense of the Indemnifying such Third Party Claim with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes chooses to defend or prosecute a Third Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are relevant to such Third Party Claim, the Indemnified Party shall have the right and making employees available on a mutually convenient basis to employ separate counsel provide additional information and to participate in the defense thereof, but the fees and expenses explanation of such counsel shall be at the expense of the Indemnified Partyany material provided hereunder. If the Indemnifying Party assumes the defense of chooses to defend or prosecute any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall will agree to any settlement, compromise or discharge of such Third Party Claim that which the Indemnifying Party may recommend and that which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim; provided that if such settlement, and which releases compromise or discharge would impose a material order, material injunction or other material non-monetary damages on the Indemnified Party, the Indemnifying Party shall not settle or compromise such Third Party Claim without prior written consent of the Indemnified Party completely in connection with such Third Party Claim(which consent shall not be unreasonably withheld or delayed). Whether or not the Indemnifying Party assumes shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)consent.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Telecom Group Inc)
Procedures. (a) In order for a Purchaser Indemnitee either Parent or Company Indemnitee the Stockholders Representative (on behalf of the Stockholders) (the “Indemnified Partyindemnified party”) ), to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person person against the Indemnified Party indemnified party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to indemnified party must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Partyindemnifying party”) promptly in writing (which notice shall specify in reasonable detail, the events giving rise to such Third Party Claim, that the indemnified party has accrued or reasonably anticipates that it will have to pay or accrue Losses, the amount of such Losses or reasonably anticipated Losses, and the specific representation, warranty or covenant on which such claim is based) of the Third Party Claim within ten (10) business days after receipt by such Indemnified indemnified party of notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of written such failure. Thereafter, the indemnified party shall deliver to the indemnifying party, within five business days’ time after the indemnified party’s receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the indemnifying party. Should the indemnifying party so elect to assume the defense of a Third Party Claim, the indemnifying party shall not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof; provided, however, that if the indemnified party reasonably believes, upon advice of counsel, there exists an actual conflict of interest between the indemnifying party and the indemnified party such that representation of both the indemnifying party and the indemnified party would be inappropriate, then the indemnified party may retain counsel of its own choice and the indemnifying party shall be liable for the reasonable fees and expenses of such counsel. If the indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, reasonably satisfactory to the indemnified party, 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 shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in accordance with Section 10.6the defense or prosecution thereof. The failure to provide such notice, however, Such cooperation shall not release include the Indemnifying Party from any of its obligations under this Article 10 except retention and (upon the indemnifying party’s request) the provision to the extent indemnifying party of records and information that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only are reasonably relevant to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, and making employees available on a mutually convenient basis to assume provide additional information and explanation of any material provided hereunder. Whether or not the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party indemnifying party assumes the defense of such a Third Party Claim, the Indemnified indemnified party shall not 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 shall have the right to employ separate counsel and to participate in the defense thereofnot be unreasonably withheld, but the fees and expenses of such counsel shall be at the expense of the Indemnified Partyconditioned or delayed). If the Indemnifying Party indemnifying party assumes the defense of any a Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party indemnified party shall agree to any settlement, compromise or discharge of such a Third Party Claim that the Indemnifying Party indemnifying party may recommend and that by its terms obligates the Indemnifying Party indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party indemnified party completely in connection with such Third Party ClaimClaim and that would not otherwise materially adversely affect the indemnified party. Whether or Notwithstanding the foregoing, (A) if (i) the indemnifying party does not the Indemnifying Party assumes assume the defense of a Third Party ClaimClaim with counsel reasonably satisfactory to the indemnified party within fifteen (15) days from receipt of notice of such a Third Party Claim by indemnified party, or (ii) the indemnifying party assumes the defense of the Third Party Claim and, in the reasonable opinion of the indemnified party, fails to diligently prosecute such defense, and after delivery by the indemnified party of ten (10) business days advance notice to the indemnifying party alleging such failure to diligently prosecute, the Indemnified Party indemnifying party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, have modified the defense of such Third Party Claim without so that it would be reasonably considered to be diligently prosecuting such defense, then the Indemnifying Party’s prior written consent (which consent indemnified party shall not be unreasonably withheld).
(c) In have the event right to control the defense or settlement of any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a such Third Party Claim being asserted or demand that its reasonable costs and expenses shall be included as part of the indemnification obligation of the indemnifying party or (B) if legal counsel for the indemnified party reasonably believes that there are or may be legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party, then the indemnified party and the indemnifying party shall jointly coordinate the defense of such Third Party Claim. Furthermore, if in the reasonable opinion of the indemnified party (x) any such Third Party Claim or the litigation or resolution of any such Third Party Claim involves an issue or matter that could reasonably be expected to have a Material Adverse Effect on the indemnified party, including the dispute with a customer listed in Section 3.22 of the Company Disclosure Letter and Section 4.15 of the Parent Disclosure Letter or one of Parent’s or the Company’s top ten suppliers by dollar value for 2009 or 2010 (through the date of this Agreement), or (y) the Third Party Claim could reasonably be expected to result in an award of injunctive relief against or sought to be collected from such Indemnified Partythe indemnified party, the Indemnified indemnified party shall have the right to control the defense or settlement of any such Third Party Claim and its reasonable costs and expenses shall deliver notice be included as part of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any indemnification obligation of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureindemnifying party.
Appears in 1 contract
Sources: Merger Agreement (Authentec Inc)
Procedures. Claims for indemnification under this Agreement shall only be asserted and resolved as follows:
(a) In order for a Purchaser Any Buyer Indemnitee or Company Seller Indemnitee claiming indemnification under this Agreement (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person asserted against the Indemnified Party by a third party (a “Third Party Claim”), such Indemnified ) in respect of any matter that is subject to indemnification under Section 8.02 shall (i) promptly (but no later than twenty (20) days after receiving notice of the Third Party shall deliver notice thereof to Claim) notify the party against whom indemnity is sought other Party (the “Indemnifying Party”) promptly after receipt of the Third Party Claim and (ii) transmit to the Indemnifying Party a written notice (a “Claim Notice”) stating the nature, basis, the amount thereof (to the extent known or estimated, which amount shall not be conclusive of the final amount of such Third Party Claim), the method of computation thereof (to the extent known or estimated), any other remedy sought thereunder, any relevant time constraints relating thereto, and, to the extent practicable, any other material details pertaining thereto, along with copies of the relevant documents evidencing such Third Party Claim and the basis for indemnification sought. Failure to notify the Indemnifying Party in accordance with this Section 8.03(a) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party, except to the extent (1) the Indemnifying Party is prejudiced by the Indemnified Party’s failure to give such notice or (2) with respect to claims for indemnification pursuant to Section 8.02(a)(i) or Section 8.02(b)(i) the Indemnified Party fails to notify the Indemnifying Party of written notice of the such Third Party Claim in accordance with this Section 10.68.03(a) prior to the applicable Survival Expiration Date. The failure Parties will act in good faith in responding to, defending against, settling or otherwise dealing with Third Party Claims.
(b) An Indemnifying Party may elect at any time to provide assume and thereafter conduct the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice and to settle or compromise any such noticeThird Party Claim, and each Indemnified Party shall reasonably cooperate with the conduct of such defense by the Indemnifying Party with respect thereto; provided, however, shall not release that the Indemnifying Party from will not approve of the entry of any 76
(c) If any Indemnified Party becomes aware of its obligations any circumstances that may give rise to a claim for indemnification pursuant to Section 8.02 for any matter not involving a Third Party Claim, then such Indemnified Party shall promptly (i) notify the Indemnifying Party and (ii) deliver to the Indemnifying Party a written notice describing in reasonable detail the nature of the claim, describing in reasonable detail the basis of the Indemnified Party’s request for indemnification under this Article 10 Agreement and including the Indemnified Party’s best estimate of the amount of Damages (if calculable) reasonably expected to arise or that may arise from such claim. Failure to notify the Indemnifying Party in accordance with this Section 8.03(c) will not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party, except to the extent that (A) the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession failure to give such notice or under (B) with respect to claims for indemnification pursuant to Section 8.02(a)(i) or Section 8.02(b)(i) the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If Party fails to notify the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with this Section 10.6. The failure 8.03(c) prior to provide such noticethe applicable Survival Expiration Date.
(d) At the reasonable request of the Indemnifying Party, however, each Indemnified Party shall not release grant the Indemnifying Party from any and its Representatives all reasonable access to the books, records, employees and properties of its obligations under this Article 10 except such Indemnified Party to the extent that reasonably related to the Indemnifying Party is prejudiced by matters to which the applicable indemnification claim relates. All such failureaccess shall be granted during normal business hours and shall be granted under the conditions which shall not unreasonably interfere with the business and operations of such Indemnified Party.
Appears in 1 contract
Sources: Securities Purchase Agreement (Centerpoint Energy Inc)
Procedures. (a) In order for a Purchaser Indemnitee the event that any claim shall be asserted by any third party against the Buyer Indemnitees or Company Indemnitee Seller Indemnitees (Buyer Indemnitees or Seller Indemnitees, as the case may be, hereinafter, the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party ClaimIndemnitees”), which, if sustained, would result in a Deficiency, then the Indemnitees, as promptly as practicable after learning of such Indemnified claim, shall notify the Indemnifying Party of such claim, and shall deliver notice thereof extend to the party Indemnifying Party a reasonable opportunity to defend against whom indemnity is sought (such claim, at the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice’s sole expense; provided, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced proceeds in good faith, expeditiously and diligently. The Indemnitees shall, at their option and expense, have the right to participate in any defense undertaken by the Indemnifying Party with legal counsel of their own selection. No settlement or compromise of any claim which may result in a Deficiency may be made by the Indemnifying Party without the prior written consent of the Indemnitees unless: (i) prior to such failure. For settlement or compromise the avoidance Indemnifying Party acknowledges in writing its obligation to pay in full the amount of doubt, the indemnification provisions settlement or compromise and procedures contained in this Article 10 shall apply only to breaches of representations, warranties all associated expenses; and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and (ii) the CompanyIndemnitees are furnished with a full release.
(b) The In the event that the Indemnitees assert the existence of any Deficiency against the Indemnifying Party Party, they shall have the right, upon give written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Indemnifying Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense nature and amount of the Deficiency asserted. If the Indemnifying Party with counsel selected Party, within a period of thirty (30) calendar days after receipt of the Indemnitees’ notice, shall not give written notice to the Indemnitees announcing its intent to contest such assertion of the Indemnitees (such notice by the Indemnifying Party being hereinafter referred to as the “Contest Notice”), such assertion of the Indemnitees shall be deemed accepted and reasonably satisfactory the amount of the Deficiency shall be deemed established. In the event, however, that a Contest Notice is given to the Indemnified Party. If Indemnitees within said 30-day period, then the Indemnifying Party assumes the defense contested assertion of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel a Deficiency shall be at settled by arbitration to be held in Salt Lake City, Utah in accordance with the expense Commercial Rules of the Indemnified PartyAmerican Arbitration Association then existing. If The determination of the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party arbitrator shall cooperate with the Indemnifying Party be delivered in such defense and make available writing to the Indemnifying Party and the Indemnitees and shall be final, binding and conclusive upon all witnessesof the parties hereto, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party ClaimDeficiency, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claimif any, the Indemnified Party determined to exist, shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)deemed established.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release Indemnitees and the Indemnifying Party from may agree in writing, at any of its obligations under this Article 10 except time, as to the extent that existence and amount of a Deficiency, and, upon the Indemnifying Party is prejudiced by execution of such failureagreement, such Deficiency shall be deemed established.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 9.5(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Liability in respect of such 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 which releases or (iii) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third Party Claim. Whether or not other than solely the Indemnifying Party assumes the defense payment of a Third Party Claim, money damages for which the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not will be unreasonably withheld)indemnified hereunder.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to the Indemnified Party or otherwise than pursuant to this Article IX. If the Indemnifying Party does not notify the Indemnified Party within 10 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a Liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The Escrow Agent (to the extent of any amounts then held in the Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Escrow Fund if applicable) shall promptly make any payment for indemnification hereunder in the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, together with interest (at the rate of interest described in Section 2.6(g)) on any amount not repaid as necessary to the Indemnified Party, within five Business Days after receipt of notice of such Losses.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 11.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. (a) In order for case any claim is made by a Purchaser Indemnitee third party, or any suit or action is commenced by a third party, against a Bank Indemnified Party or Company Indemnitee Indemnified Party, the party in * 79 respect of which indemnification may be sought under this ARTICLE XVI (including for the benefit of its officers, directors or employees claiming by or through any of them) (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against shall promptly give the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the other party against whom indemnity is sought (the “Indemnifying Party”) promptly written notice thereof and the Indemnifying Party shall be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after receipt the delivery of the applicable notice, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, except as specified in Section 16.3(b), the Indemnifying Party will not be liable to such Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyinvestigation.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate its own counsel and if the Indemnifying Party elects to participate in the defense thereofassume such defense, but the fees and expenses of such counsel shall be at the expense Indemnified Party’s expense, unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party has not employed counsel to take charge of the defense within twenty (20) days after delivery of the applicable notice or, having elected to assume such defense, thereafter ceases its defense of such action, or (iii) the Indemnified Party’s counsel has advised such Indemnified Party that the third party claim involves potential conflicts of interest that make representation of both the Indemnified Party and the Indemnifying Party inappropriate, in which event attorney’s fees of the Indemnified Party in defense of such claims shall be borne by the Indemnifying Party.
(c) The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party desires not to assume, or participate in the defense of, any such claim, suit or action.
(d) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to settle or compromise any claim, suit or action against the Indemnified Party in respect of which payments may be sought by the Indemnified Party hereunder, and (i) the Indemnifying Party may settle or compromise any such claim, suit or action solely for the payment of money damages, but shall not agree to any other settlement or compromise without the prior consent of the Indemnified Party. If the Indemnifying Party assumes the defense , which consent shall not be unreasonably withheld (it being agreed that any failure of any Third Indemnified Party Claimto consent to any settlement or compromise involving the imposition of nonmonetary remedies on the Indemnified Parties shall not be deemed to be unreasonably withheld), and (ii) the Indemnified Party may settle or compromise any such claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall cooperate with not settle or compromise any other matter without the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by prior consent of the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Credit Card Program Agreement
Procedures. (a) In order for Promptly after a Purchaser Indemnitee or Company Indemnitee Person entitled to indemnification hereunder (the “Indemnified Party”) to has received notice or has knowledge of any claim or the commencement of any Action for which such party may be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against ARTICLE 10, the Indemnified Party (a “Third Party Claim”)shall, if it wishes to seek indemnification for such Indemnified Party shall deliver notice thereof to claim or Action, give the party against whom indemnity is sought required to provide indemnification hereunder (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of ), written notice of such claim or the Third Party Claim in accordance with Section 10.6. The failure to commencement of such Action and provide such notice, however, shall not release the Indemnifying Party from with the facts within the Indemnified Party’s knowledge respecting such claim or Action that is in the possession of the Indemnified Party. To extent reasonably determinable by the Indemnified Party, such notice shall state the nature and basis of such claim or Action and the amount in dispute under such claim or Action. In each such case, the Indemnified Party agrees to give such notice to the Indemnifying Party promptly following its knowledge of any such claim or Action; provided that the delay or failure of its obligations under this Article 10 the Indemnified Party to give such notice shall not excuse the Indemnifying Party’s obligation to indemnify except to the extent that the Indemnifying Party is actually prejudiced by such failure. For the avoidance reason of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the ’s delay or failure in its defense of such claim. If such notice concerns a Third Party ClaimPerson Claim and such Third Person Claim does not allege violations of criminal law, the Indemnified Indemnifying Party shall have the right to employ separate counsel and to participate in the defense thereofelect, but the fees and expenses of such counsel shall be at the expense of the Indemnified Indemnifying Party. If the Indemnifying Party assumes ’s sole expense, to assume the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim Person Claim; provided that the Indemnifying Party may recommend and that by its terms obligates shall obtain the Indemnifying Party to pay the full amount prior written consent of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement, adjustment or compromise of any such Third Person Claim. The Indemnified Party shall have the right to elect, at such party’s sole expense, to participate in (but not control) the defense of a Third Person Claim, the defense of which is validly assumed by the Indemnifying Party, and to employ, at its own expense, counsel in connection with its participation therein; provided, however, that if there exists a material conflict of interest between the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, or if the Indemnified Party has been advised by counsel that there may be one or more legal or equitable defenses available to it that are different from or additional to those available to the Indemnifying Party that, in either case, would make it inappropriate for the same counsel to represent both the Indemnifying Party and the Indemnified Party, then the Indemnified Party shall be entitled to retain its own counsel at the cost and expense of the Indemnifying Party (except that the Indemnifying Party shall not be obligated to pay the fees and expenses of more than one separate counsel for all Indemnified Parties, taken together). If the Indemnifying Party has elected not to assume the control of the defense of such Third Person Claim, or if the Indemnifying Party shall have failed after the lapse of a reasonable period of time, which shall in no event be less than 10 calendar days after receipt by the Indemnifying Party of written notice of such Third Person Claim, to assume the control of the defense of such Third Person Claim, the Indemnified Party shall be entitled to defend against the same and to employ counsel reasonably satisfactory to the Indemnifying Party, at the expense of the Indemnifying Party; provided, in such event, the Indemnified Party shall obtain the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld) before entering into any settlement, adjustment or compromise of any such Third Person Claim. In connection with any Third Person Claim, the Indemnified Party, or the Indemnifying Party, if it has assumed the defense of such Third Person Claim pursuant to this Section 10.4(a), shall diligently defend such Third Person Claim and the parties shall reasonably cooperate with one another in connection with the handling of such Third Person Claim shall make available personnel, witnesses, books, and records relevant to such Third Person Claim and grant such authorizations as are necessary and reasonable to their respective agents, Representatives, and counsel upon reasonable request and keep each other reasonably informed of the status thereof.
(cb) In If the event any Indemnified Party should shall have a any claim against any the Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought pursuant to be collected from such Indemnified Partythis Section 10.4, the Indemnified Party shall deliver to the Indemnifying Party a written notice explaining the nature and a reasonable estimate of the amount of such claim in accordance with Section 10.6. The failure to provide promptly after the Indemnified Party shall know of such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureclaim.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee Promptly after the receipt by any Person seeking indemnification under this Article 21 (the “Indemnified Party”) to be entitled of written notice of the assertion of any claim by a third party with respect to any matter in respect of which indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party may be sought hereunder (a “Third Party Claim”), such the Indemnified Party shall deliver give written notice thereof (the “Indemnification Notice”) to the party against whom indemnity Party from which indemnification is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified ), and shall thereafter keep the Indemnifying Party of written notice of the Third Party Claim in accordance reasonably informed with Section 10.6. The failure to provide such noticerespect thereto; provided, however, shall not release that the failure of the Indemnified Party to give the Indemnifying Party from notice as provided herein shall not relieve the Indemnifying Party of any of its obligations under this Article 10 hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have be entitled to assume the right, upon defense of any Third Party Claim by written notice to the Indemnified Party of such intention given within 30 thirty (30) days of after the receipt of notice from by the Indemnified Indemnifying Party of the commencement of such Third Party ClaimIndemnification Notice; provided, to assume the defense thereof at the expense of the Indemnifying Party with however, that counsel selected by the Indemnifying Party and shall be reasonably satisfactory to the Indemnified Party. If the The Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but be liable for the fees and expenses of such counsel shall be at the expense of employed by the Indemnified Party. If Party for any period during which the Indemnifying Party assumes has not assumed the defense of any Third Party Claim, Claim (other than during any period during which the Indemnified Party shall cooperate with the Indemnifying has failed to give notice of such Third Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto Claim as is reasonably required by the Indemnifying Partyprovided above). If the Indemnifying Party assumes shall assume the defense of any the Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that then 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, settle such Third Party Claim without the Indemnifying Party’s prior written consent (of the Indemnified Party, which consent shall not be unreasonably withheld).
(c) In , delayed or conditioned; provided, however, that the event any Indemnified Party should shall have a claim against no obligation to consent to any Indemnifying Party hereunder settlement that (a) does not involve 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 such Third Party Claim being asserted against or sought to be collected from (b) involves the imposition of equitable remedies or the imposition of any material obligations on such Indemnified PartyParty other than financial obligations for which such Indemnified Party is indemnified hereunder. As long as the Indemnifying Party is contesting any such Third Party Claim on a timely basis, the Indemnified Party shall deliver notice of not pay, compromise or settle any claims brought under such claim in accordance with Section 10.6Third Party Claim. The failure to provide such notice, however, shall not release Notwithstanding the assumption by the Indemnifying Party from of the defense of any Third Party Claim as provided in this Section 21.3, the Indemnified Party shall be permitted to participate in the defense of such Third Party Claim and to employ counsel at its obligations under this Article 10 except to the extent own expense (it being understood that the Indemnifying Party is prejudiced controls such defense); provided, however, that, if the defendants in any Third Party Claim 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 has a conflict of interest because of the availability of different or additional defenses to such failureIndemnified Party, such Indemnified Party shall then have the right to select separate counsel to participate in the defense of such Third Party Claim on its behalf, at the expense of the Indemnifying Party; provided that the Indemnifying Party shall not be obligated to pay the expenses of more than one separate counsel for all Indemnified Parties, taken together.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Party”) promptly in writing (and in reasonable detail) of the Third Party Claim within fifteen (15) Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticeClaim; provided, however, that failure to give such notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five Business Days’ after the Indemnified Party’s receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnified Party shall agree have the right to any settlementparticipate in the defense thereof and to employ counsel, compromise or discharge of such Third Party Claim at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party may recommend shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and that expenses of counsel employed by its terms obligates the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to pay the full amount give notice of the liability Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all Indemnified Parties shall cooperate in connection with the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and which releases the Indemnified Party completely in connection with making employees and Representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder or other matters reasonably related to such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of 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 Losses in connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 10.1 or 10.2 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party, but in accordance with Section 10.6any event not later than five (5) Business Days after the Indemnified Party determines that it has or could have a claim to indemnification hereunder, stating the amount of Loss, if known, and method of computation thereof, and containing a specific reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The failure by any Indemnified Party so to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations indemnification obligation that it may have to such Indemnified Party under this Article 10 Section 10.1 or 10.2, as applicable, except to the extent that the Indemnifying Party is prejudiced by such failure. If the Indemnifying Party disputes that it has an indemnification obligation with respect to such claim, the Indemnifying Party shall deliver notice of such dispute with reasonable promptness and the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute for a period of thirty (30) days following the receipt by the Indemnified Party of such dispute notice. If the Indemnified Party and the Indemnifying Party have not resolved such dispute during such time period through good faith negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction or other mutually agreeable non-judicial dispute resolution mechanism.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result respect of a Indemnified Liability claim arising out of or involving a claim or demand made Loss by any Person against the a Purchaser Indemnified Party or a Seller Indemnified Party (such person, an “Indemnified Party” and such claim a “Third Party Claim”), such Indemnified Party shall deliver notice a Claim Notice in respect thereof to the party against whom indemnity is sought Seller or Purchaser, as applicable (such person, the “Indemnifying Party”) promptly with reasonable promptness after receipt by such the Indemnified Party of written notice of the Third Party Claim (and in accordance any event within ten Business Days after becoming aware of such claims), and shall provide the Indemnifying Party with (i) the specific subsection of Section 10.68.2 upon which the Indemnified Party is basing its claim and, if applicable, the representation and warranty or covenant alleged to have been breached by the Indemnifying Party; (ii) a reasonably detailed description of the facts and circumstances giving rise to the claim to the extent that such information is available to the Indemnified Party; and (iii) to the extent estimable, a good faith estimate of the total amount of, the Losses actually incurred or expected to be incurred by the Indemnified Party with respect to such claim ((i) through (iii) the “Claim Information”). The failure to provide such noticetimely deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 Section 8 except to the extent that the Indemnifying Party is materially prejudiced by such failure. For A party’s consent to any settlement of a Third Party Claim shall not be used as evidence of the avoidance truth of doubtthe allegations in any Third Party Claim or the merits of such Third Party Claim. Furthermore, the existence of any Third Party Claim shall not create a presumption of any indemnification provisions and procedures contained in obligation of any party to this Article 10 shall apply only to breaches Agreement or any breach of any representations, warranties and or covenants under set forth in this Agreement and shall not apply to or any other agreement or instrument entered into between Purchaser and the CompanyAncillary Agreement.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 [*] days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.3(b), the Indemnified Party shall have the sole right to assume the defense of such Third Party Claim, . The Party not controlling the Indemnified defense of the Third Party Claim shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such party unless, in the opinion of outside counsel to the Indemnified Party. If , it is advisable for the Indemnifying Indemnified Party assumes the defense to be represented by separate counsel due to actual or potential conflicts of any Third Party Claiminterest, in which case the Indemnified Party shall have the right to employ counsel to represent it and in that event the reasonable documented out-of-pocket fees and expenses of such separate counsel shall be deemed to be Losses in the event that Indemnifying Party is deemed to be otherwise finally determined to be liable for Losses pursuant to such Claim Notice.
(c) The Party not controlling the Third Party Claim (the “Non-Controlling Party”) shall reasonably cooperate with the Indemnifying Party controlling the Third Party Claim (the “Controlling Party”) in such defense and make available to the Indemnifying Controlling Party all witnesses, pertinent records, materials and information in the Indemnified Non-Controlling Party’s possession or under the Indemnified Non-Controlling Party’s control relating thereto as is reasonably required by the Indemnifying Controlling Party; provided, however, that such actions and cooperation by the Non-Controlling Party will not unduly disrupt the operations of the Non-Controlling Party’s business or cause the Non-Controlling Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Non-Controlling Party to become public. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified The Controlling Party shall agree to any settlementnot, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent of the Non-Controlling Party (which consent shall not be unreasonably withheld, conditioned or delayed), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim; provided, however, that, if an Indemnifying Party is proposing to enter into any settlement or compromise or consent to the entry of any monetary judgment with respect to such Third Party Claims, such consent of Indemnified Party shall not be required if (i) the Indemnifying Party agrees to pay or cause to be paid any amounts payable pursuant to such settlement, compromise or judgment (net of applicable baskets and deductibles set forth in Section 8.4) and such settlement, compromise or judgment includes no admission of liability by or other obligation on the part of the Indemnified Party, (ii) such settlement, compromise or judgment includes no finding or admission of liability by or other obligation or equitable remedies on the part of the Indemnified Party with respect to such Third Party Claim, and (iii) such claim, settlement, compromise or judgment includes an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim.
(cd) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a claim against any Indemnifying Party hereunder Loss that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice of a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness, and shall provide the Indemnifying Party with the Claim Information and such claim in accordance other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticetimely deliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 Section 8 except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters, including providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters; provided, however, that such actions and cooperation by the Indemnified Party will not unduly disrupt the operations of the Indemnified Party’s business or cause the Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to Third Parties or otherwise cause any confidential information of the Indemnified Party to become public. If the Indemnifying Party does not notify the Indemnified Party within 15 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall indemnify the Indemnified Party for such Losses (or, in the case of any notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall indemnify the Indemnified Party for such Losses (or, in the case of any notice in which the Losses (or any portion thereof) are estimated, the amount of such Losses (or such portion thereof) as finally determined) subject to the limitations of this Section 8, without prejudice to or waiver of the Indemnified Party’s claim for the difference. If the Indemnifying Party contests the payment of all or part of the claimed amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such dispute. If such dispute is not resolved within 30 days following the delivery by the Indemnifying Party of such response, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to arbitration in accordance with the provisions of Section 10.8.
(e) A Claim Notice shall with respect to Third Party Claims, include copies of material communications and documentation, any summons, complaint or other pleading which may have been served on such Party and any written claim, demand, invoice, bill or other document evidencing or asserting the same.
(f) To the extent the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, the Indemnifying Party will be entitled to exercise, and will be subrogated to, any rights and remedies (including rights of indemnity, rights of contribution and other rights of recovery) that the Indemnified Party or any of the Indemnified Party’s Affiliates may have against any other Person with respect to any Losses or circumstances to which such indemnification payment is directly or indirectly related. The Indemnified Party will take such actions as the Indemnifying Party may reasonably request for the purpose of enabling the Indemnifying Party to perfect or exercise the Indemnifying Party’s right of subrogation hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Travere Therapeutics, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability Loss or a claim or demand made by any Person other than the Sellers or the Buyer (or their respective Affiliates) against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim Claim, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, provided that the Indemnifying Party shall not settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the Indemnified Party has been advised in writing by counsel 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. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claimdefense. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (consent, which consent shall not be unreasonably withheld), conditioned or delayed.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure promptly to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Campus Communities Operating Partnership LP)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “"Indemnifying Party”") promptly in writing (and in reasonable detail) of the Third Party Claim within 15 business days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticeClaim; provided, however, that failure to give such notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five business days' after the Indemnified Party's receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the fees and expenses of such counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall be at the expense have failed to give notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying Party assumes the defense of any chooses to defend or prosecute a Third Party Claim, all the Indemnified Party indemnified parties shall cooperate with in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Party's request) the provision to the Indemnifying Party all witnesses, pertinent records, materials of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of 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, which releases the Indemnified Party completely in connection with such 33 FINAL FORM Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 7.02 or 7.03 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party so to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article 10 Section 7.02 or 7.03, except to the extent that the Indemnifying Party is demonstrates that it has been actually prejudiced by such failure. If the Indemnifying Party disputes 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 and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person (other than a party hereto) against the Indemnified Party (a “Third Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought Stockholder Representative, on behalf of the Seller Indemnifying Parties, or to the Acquiror, as applicable (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VI except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof (except that the defense or prosecution of such claim shall be tendered to the insurance carrier of the R&W Insurance Policy if such carrier has assumed the defense thereof under the R&W Insurance Policy) at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any claim (i) for equitable or injunctive relief, (ii) that would impose criminal liability or damages, (iii) that involves a material customer or supplier of the Indemnified Party or (iv) if the Indemnified Party reasonably determines that the Losses that it may incur arising from or related to any claim could reasonably be expected to exceed the General Cap or the Indemnification Cap, as applicable, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 6.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim (except that the defense or prosecution of such claim shall be tendered to the insurance carrier of the R&W Insurance Policy if such carrier has assumed the defense thereof under the R&W Insurance Policy). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of such Third Party Claim that wrongdoing, (B) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the Indemnified Party from all liability in connection with respect of such Third Party Claim, and which releases (C) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third other than solely the payment of money damages for which the Indemnified Party Claimwill be indemnified hereunder or (D) requires the consent of the carrier of the R&W Insurance Policy under the terms of the R&W Insurance Policy. Whether or not If the Indemnifying Indemnified Party assumes the defense of a any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnified Party assumes the defense of, or otherwise has the right to control any Third Party Claim, the Indemnified Party shall not admit enter into any liability settlement or compromise or consent to the entry of any judgment with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which of the Indemnifying Party, such written consent shall not to be unreasonably withheld), conditioned or delayed.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VI except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VI, provided, however, in all cases a Claim Notice must be delivered prior to the end of the respective survival period for such matter as set forth in Section 6.1. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder (i) by a Seller Indemnifying Party shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Indemnity Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Indemnity Escrow Fund if applicable) of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party and (ii) by an Acquiror Indemnifying Party shall be made by prompt payment by the Acquiror of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 7.11, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. If any demands or claims are asserted against a Person entitled to indemnification under Section 9.2 or Section 9.2(f) (a) In order for a Purchaser Indemnitee or Company Indemnitee (the an “Indemnified Party”) to be entitled to or any indemnification provided for under this Agreement as actions, suits, or proceedings are commenced against an Indemnified Party by a result Person not a Party or an Affiliate of a Indemnified Liability or Party for which a claim or demand made by any Person against Party (the “Indemnifying Party”) is obligated to indemnify such Indemnified Party (a “Third Party Claim”), such the Indemnified Party shall deliver will give prompt notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except in order to the extent that the permit Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, necessary time to evaluate the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement merits of such Third Party Claim, but the failure of an Indemnified Party to give prompt notice to the Indemnifying Party shall not affect the rights of the Indemnified Party to indemnification hereunder, except to the extent any such failure materially prejudices the rights of the Indemnifying Party. The Indemnifying Party will have the right, but not the obligation, to assume the defense thereof of any such claim at the its own expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If Party so long as the Indemnifying Party assumes acknowledges in writing that the Indemnified Party is entitled to indemnification hereunder in respect of the Losses subject to such Third Party Claim and so long as the Indemnifying Party notifies the Indemnified Party in writing that it is assuming the defense of such Third Party Claimclaim within 20 days after receipt of notice of the claim from Indemnified Party, the Indemnified Party shall have the right to employ separate counsel be informed and consulted with respect to the negotiation, settlement or defense of such Third Party Claim and to participate in the defense thereofretain counsel to act on its behalf, but the fees and expenses disbursements of such counsel shall be at the expense of paid by the Indemnified Party; provided that if the Indemnifying Party assumes control of such defense and (i) the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party may have a conflict of interest or different defenses available with respect to such Proceeding that would make it inappropriate for the same counsel to represent both parties or (ii) the Indemnifying Party has not in fact employed counsel to assume control of such defense, the reasonable fees and expenses of counsel to the Indemnified Party (limited to one law firm in each applicable jurisdiction) shall be paid for by the Indemnifying Party. If The party controlling such defense shall keep the other party advised of the status of such Proceeding and the defense thereof. Notwithstanding anything to the contrary herein, Buyer as Indemnified Party shall have the full right to control the defense and settlement of any Third Party Claim if: (1) the claim seeks anything other than monetary damages, including an injunction or other equitable relief; (2) the claim involves a claim by any Governmental Authority or a significant customer, supplier, dealer, distributor, sales representative or other business partner of the Cobalt Companies, or involves a criminal claim; (3) the amount reasonably necessary to conclude the defense of such Third Party Claim is in excess of (or reasonably likely to exceed) the remaining portion of the liability cap under Section 9.2(b) applicable to such claim after reduction of all Losses previously recovered by (or then being claimed pursuant to unresolved claims) by the Buyer Parties that count (or would count) towards such cap (if a cap is applicable to such claim); or (4) the Indemnifying Party assumes the defense of any Third Party Claim, but fails to promptly defend the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether Assumption by Buyer of control of any such defense or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent settlement shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have deemed a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any waiver by it of its obligations under this Article 10 except right to the extent that the Indemnifying Party is prejudiced by such failureindemnification hereunder.
Appears in 1 contract
Procedures. (aA) In order for a Purchaser Indemnitee or Company Indemnitee party (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party for monetary damages (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “"Indemnifying Party”") promptly within fifteen Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(bB) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party's expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s 's possession or under the Indemnified Party’s 's control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party shall agree (which consent will not be unreasonably withheld), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such 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 which releases or (iii) imposes equitable remedies or any obligation on the Indemnified Party completely other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(C) The indemnification required hereunder in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense respect of a Third Party ClaimClaim shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer Losses incurred have been notified to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (, together with interest on any amount not repaid as necessary to the Indemnified Party by the Indemnifying Party within five Business Days after receipt of notice of such Losses, from the date such Losses have been notified to the Indemnifying Party, at the rate per annum at which consent shall not be unreasonably withheld)deposits are offered by first class banks to first class banks in immediately available funds in the London Interbank Market for available funds in the London Interbank Market.
(cD) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party's claim for the difference.
(E) Notwithstanding the provisions of Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee A party seeking indemnification pursuant to Sections 7.2 or Company Indemnitee 7.3 (the “an "Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt notice thereof to the party against from whom indemnity such indemnification is sought (the “"Indemnifying Party”") promptly after receipt by such Indemnified Party of written notice of the assertion of any claim or assessment, or the commencement of any action, suit, audit or proceeding, by a third 29 35 party in respect of which indemnity may be sought hereunder (a "Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release Claim") and will give the Indemnifying Party from such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any of its obligations under this Article 10 liability hereunder (except to the extent that the Indemnifying Party is prejudiced by such failurehas suffered actual prejudice thereby). For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon exercisable by written notice (the "Notice") to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of such any Third Party Claim, to assume the defense thereof at the expense of the Indemnifying such Third Party with Claim, using counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall be deemed to have irrevocably accepted the matter as a claim subject to indemnification pursuant to this Article 7, and provided that the Indemnifying Party thereafter diligently and continuously pursues the defense of the Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes shall fail to assume the defense of the Third Party Claim within such thirty (30) day period, or subsequently fails to diligently and continuously pursue the defense of the Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in undertake the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that on behalf of the Indemnifying Party. In the event the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party elects to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes assume the defense of a any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, discharge such Third Party Claim without the Indemnifying Party’s 's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days' prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim, provided that such consent, judgment or settlement includes a release of the Indemnified Party and the settlement or judgment involves an amount to be paid on behalf of or by the Indemnified Party that is less than the Cap Amount. Notwithstanding the foregoing, in no event shall the Indemnifying Party have the right to consent to the entry of judgment or otherwise settle such Third Party Claim if: (i) the Third Party Claim involves equitable or other non-monetary damages, or (ii) in the reasonable judgment of the Indemnified Party, such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld).
(cd) In Whether or not the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim being asserted against or sought Claim, and making employees available on a mutually convenient basis to be collected from such Indemnified Partyprovide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall reimburse the Indemnified Party shall deliver notice of such claim for all its reasonable out-of-pocket expenses in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureconnection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) Party to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person person against the Indemnified Party (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to must notify the party against whom indemnity is sought Indemnifying Party in writing of the Third Party Claim (the “Indemnifying Party”a "Claim Notice") promptly after following receipt by such Indemnified Party of written notice of the Third Party Claim, which notification, to be a valid Claim in accordance with Section 10.6. The failure to provide such noticeNotice, must be accompanied by a copy of the written notice of the Third Party Claimant asserting the Third Party Claim; provided, however, that failure to give such notification promptly (so long as a valid Claim Notice is given before the expiration of the applicable period) shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been prejudiced by as a result of such failure. For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party copies of all other notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses incurred by the Indemnified Party in connection with the defense thereof, except as provided below. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the reasonable fees and expenses of such counsel shall be at the expense of employed by the Indemnified PartyParty (provided that the incurrence of such fees and expenses of counsel was reasonably 29 necessary to respond timely to legal process) for any period after the Claim Notice is given during which the Indemnifying Party has not assumed the defense thereof if and to the extent that the Indemnifying Party is responsible to indemnify for such Third Party Claim. If the Indemnifying Party assumes does not assume the defense of any a Third Party Claim within 30 days after the giving by the Indemnified Party to the Indemnifying Party of a valid Claim Notice with respect to the Third Party Claim, the Indemnifying Party shall be liable to the Indemnified Party shall cooperate with for all fees and expenses of counsel employed by the Indemnified Party if and to the extent that the Indemnifying Party in is responsible to indemnify for such defense and make available Third Party Claim; provided, however, such counsel is not reasonably objected to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any chooses to defend a Third Party Claim, all the Indemnified Party Parties shall agree cooperate in the defense thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend of records and that by its terms obligates the Indemnifying Party information which are relevant to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder and to act as a witness or respond to legal process. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld).
(c) In . If the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve assumes the defense of a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall deliver notice agree to any settlement, compromise or discharge of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying a Third Party from any of its obligations under this Article 10 except to the extent Claim that the Indemnifying Party is prejudiced may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such failureThird Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim.
Appears in 1 contract
Procedures. (ai) In order for a Purchaser Indemnitee If any Proceeding shall be brought or Company Indemnitee asserted against any Person entitled to indemnity hereunder (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to promptly notify the party against Person from whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticewriting, however, shall not release and the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at thereof, including the expense employment of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party assumes of its obligations or liabilities pursuant to this Agreement, except (and only) to the defense extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such Third Party Claim, failure shall have proximately and materially adversely prejudiced the Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the such Indemnified Party. If Party or Parties unless: (A) the Indemnifying Party assumes has agreed in writing to pay such fees and expenses; (B) the Indemnifying Party shall have failed to promptly assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any Third such Proceeding; or (C) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party Claimand the Indemnifying Party, the and such Indemnified Party shall cooperate with have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in such defense and make available writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party all witnesses, pertinent records, materials shall not have the right to assume the defense thereof and information in such counsel shall be at the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by expense of the Indemnifying Party). If the The Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit be liable for any liability with respect tosettlement of any such Proceeding effected without its written consent, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement requires only the payment of cash or other consideration by the Indemnifying Party on behalf of the Indemnified Party and includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
(ciii) In All fees and expenses of the event any Indemnified Party should have (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a claim against any Indemnifying Party hereunder that does manner not involve a Third Party Claim being asserted against or sought inconsistent with this Section) shall be paid to be collected from such the Indemnified Party, the Indemnified Party shall deliver as incurred, within ten business days of written notice of such claim in accordance with Section 10.6. The failure thereof to provide such notice, however, shall not release the Indemnifying Party from any (regardless of its obligations under this Article 10 except whether it is ultimately determined that an Indemnified Party is not entitled to the extent indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is prejudiced by finally judicially determined that such failureIndemnified Party is not entitled to indemnification hereunder).
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) "indemnified ---------- ----------- party"), to be entitled to any indemnification provided for under this Agreement as a result ----- in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person other than a Parent Party or its Affiliate against the Indemnified Party indemnified party (a “"Third Party ----------- Claim”"), such Indemnified indemnified party must notify the indemnifying party in writing ----- (including copies of all papers served or delivered with respect to such claim) of the Third Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) Claim promptly after following receipt by such Indemnified Party indemnified party of written notice of the Third Party Claim, which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim in accordance with Section 10.6. The failure to provide such noticethe extent feasible and the basis of the indemnified party's request for indemnification hereunder; provided, however, that failure to give -------- ------- such notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent the indemnifying party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by indemnifying party shall not be liable for any expenses incurred during the period in which the indemnified party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions indemnified party shall deliver to the indemnifying party, promptly following the indemnified party's receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the indemnified party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such If a Third Party ClaimClaim is made against an indemnified party, the indemnifying party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying indemnifying party; provided, however, that such counsel is not reasonably -------- ------- objected to by the indemnified party. Should the indemnifying party so elect to assume the defense of a Third Party and reasonably satisfactory Claim, the indemnifying party shall not be liable to the Indemnified Partyindemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. If the Indemnifying Party indemnifying party assumes such defense, the indemnified party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than during any period in which the indemnified party shall have failed to give notice of the Third Party Claim as provided above). If the indemnifying party chooses to defend or prosecute a Third Party Claim, all the indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the indemnifying party's request) the provision to the indemnifying party 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. Whether or not the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party indemnifying party assumes the defense of any a Third Party Claim, the Indemnified indemnified party shall not 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 shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Partynot be unreasonably withheld). If the Indemnifying Party indemnifying party assumes the defense of any a Third Party Claim, the Indemnified Party indemnified party shall agree to any settlement, compromise or discharge of such a Third Party Claim that the Indemnifying Party indemnifying party may recommend and that by its terms obligates the Indemnifying Party indemnifying party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party indemnified party completely in connection with such Third Party ClaimClaim and that would not otherwise adversely affect the indemnified party. Whether or Notwithstanding the foregoing, the indemnifying party shall not the Indemnifying Party assumes be entitled to assume the defense of a any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the indemnified party in defending such Third Party Claim, ) if the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such predominant remedy sought in the Third Party Claim without is for an order, injunction or other equitable relief or relief for other than money damages against the Indemnifying Party’s prior written consent (which consent shall indemnified party that the indemnified party reasonably determines, after conferring with its outside counsel, cannot be unreasonably withheld)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.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought is brought in which the liability as between the parties to this Agreement is alleged by the Person bringing such claim to be collected from such Indemnified Partyjoint, the Indemnified Party parties shall deliver notice cooperate in the joint defense of such claim Third Party Claim and shall offer to each other such assistance as may reasonably be requested in accordance with Section 10.6order to encourage the proper and adequate defense of any such matter. The failure Such joint defense shall be under the general management and supervision of the party which would reasonably be expected to provide such noticebear the greater share of the liability, unless otherwise agreed; provided, however, shall not release the Indemnifying Party from that neither -------- ------- Purchaser nor any of its obligations Affiliates or Lyondell nor any of its Affiliates shall settle or compromise any such joint defense without the consent of Lyondell or Purchaser, as the case may be, which consent shall not be unreasonably withheld or delayed. Any uninsured costs of such joint defense shall be borne as the parties may agree, provided, however, that in the absence of such agreement, the defense costs shall be borne by the party incurring such costs; provided -------- further, however, that, if it is later determined that one party was entitled to ------- ------- indemnification for such liability under this Article 10 except VI, the other party shall reimburse the party entitled to the extent that the Indemnifying Party is prejudiced by indemnification for all of its costs incurred in connection with such failuredefense.
Appears in 1 contract
Sources: Master Asset and Stock Purchase Agreement (Lyondell Chemical Co)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss, claim, demand or a claim Action made or demand made commenced by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party ) shall deliver written notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought Holder Representative, on behalf of the Holders, or to Parent, as applicable (the “Indemnifying Party”) promptly ), with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide deliver a Claim Notice, or any delay in providing such written notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For failure or such Claim Notice is not delivered on or prior to the avoidance expiration of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyapplicable survival period.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement (and, at Parent’s request, demonstrates the wherewithal of the Indemnifying Party to satisfy any such reasonably expected potential Losses, which may be by recourse to the Escrow Fund), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief, any claim that would impose criminal liability or damages, or any Third Party Claim that relates to Taxes other than solely Pre-Closing Taxes, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party (to the extent Losses resulting from such Third Party Claim are indemnifiable under Section 8.2), any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the right to assume the defense of such Third Party Claim. The Indemnified Party shall reasonably consult with the Indemnifying Party prior to the settlement of any such Third Party Claim and discuss with the Indemnifying Party in good faith any input regarding the claim and potential settlement the Indemnifying Party may have prior to any settlement (in each case, to the extent the terms thereof are not subject to a confidentiality agreement with the claimant). After such consultation (or in the event that the Indemnified Party is prohibited from consulting or the Indemnifying Party elects not to consult with the Indemnified Party), subject to Schedule 8.2(g), the Indemnified Party shall have the right to settle any such claim, even if the terms thereof are inconsistent with those proposed or advocated by the Indemnifying Party; provided, however, that, except with the prior written consent of the Indemnifying Party, no settlement of any such claim or consent to entry of any judgment with respect to such Third-Party Claim shall alone be determinative of the validity or amount of the Third-Party Claim as an indemnifiable claim. If the Indemnifying Party consents to the general economic terms of such settlement, the settlement of any such Third Party Claim shall be determinative of the amount of any claim for Losses and neither the Holder Representative nor any Holder shall have any power or authority to object under any provision of this Article VIII to the settlement or the amount of any claim for Losses by Parent against the Escrow Fund or otherwise with respect to such settlement to the extent the amount of Losses claimed are consistent with the terms of such settlement. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party, (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been 76 advised by such counsel that there are one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party, or (iii) the Indemnifying Party is not defending such Third Party Claim diligently in good faith. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of such Third Party Claim that wrongdoing, (B) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely from all liability in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense respect of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying requirement of any compensation or payment by the Indemnified Party’s prior written consent , (C) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which consent shall not the Indemnified Party will be unreasonably withheld)indemnified hereunder, or (D) would result in any increase in Taxes of Parent, the Surviving Company or any of their Subsidiaries or Affiliates.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Escrow Agent in accordance with the Escrow Agreement (to the extent of any amounts then held in the Escrow Fund, if applicable) or by the Indemnifying Party (to the extent of any amounts not then held in the Escrow Fund, if applicable) of the amount of actual Losses incurred in connection therewith, together with interest on any amount not paid as necessary to the Indemnified Party by the Escrow Agent or the Indemnifying Party, as applicable, within five Business Days after receipt of written notice of such Losses, from the date such Losses have 77 been notified to the Indemnifying Party. Amounts to be paid under this Article VIII shall bear interest at a rate equal to the rate of interest from time to time announced publicly by The Wall Street Journal as its prime rate, calculated on the basis of a year of 365 days and the number of days elapsed.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 10.10, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Sources: Merger Agreement (Green Dot Corp)
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) ), promptly after receipt by such Indemnified Party of written notice of the Third Party Claim Claim, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement of such Third Party ClaimClaim that is exclusively for civil monetary damages at law, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of (x) any Third Party Claim for equitable or injunctive relief, (y) any Third Party Claim that would result in the imposition of an Order that could materially restrict or adversely affect the future activity or conduct of the Indemnified Party or its Affiliates, or (z) any Third Party Claim that would impose criminal Liability or damages, and, in each such case, the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party shall agree (not to be unreasonably withheld), enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of such Third Party Claim that wrongdoing, (ii) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the liability Indemnified Party from all Liability in connection with respect of such Third Party Claim, and which releases or (iii) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third other than solely the payment of money damages for which the Indemnified Party Claimwill be indemnified hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability Liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent not to be unreasonably withheld). Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to control any claim relating to Taxes of the Indemnified Party for any period ending after the Closing Date and shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the Liability of the Indemnified Party for Taxes for any period after the Closing Date, without the prior written consent of the Indemnified Party (not to be unreasonably withheld); provided, however, that the Indemnifying Party shall have the right to employ separate counsel and to participate in any such claim to the extent relating to Taxes for which is could be liable under this Agreement, and the Indemnified Party shall not settle, compromise or discharge, or offer to settle, compromise or discharge, any such claim without the Indemnifying Party’s prior written consent (not to be unreasonably withheld).
(c) The Indemnifying Party shall not be entitled to require that any Action be made or brought against any other Person before Action is brought against it hereunder by the Indemnified Party.
(d) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within twenty (20) Business Days following its receipt of such notice that the Indemnifying Party disputes its Liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a Liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party Party
(a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure by the Indemnified Party to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 fifteen (15) days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, (i) the Indemnifying Party shall not be entitled to assume the defense of (x) any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, or (y) any Third Party Claim relating to Taxes with respect to a period beginning before and ending after the Closing Date, and (ii) the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim described in clauses (x) and/or (y). The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of such 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.wrongdoing,
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee A party seeking indemnification pursuant to Sections 7.2 or Company Indemnitee 7.3 (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt notice thereof to the party against from whom indemnity such indemnification is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the assertion of any claim or assessment, or the commencement of any action, suit, audit or proceeding, by a third party in respect of which indemnity may be sought hereunder (a “Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release Claim”) and will give the Indemnifying Party from such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any of its obligations under this Article 10 liability hereunder (except to the extent that the Indemnifying Party is prejudiced by such failurehas suffered actual prejudice thereby). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) Third Party Claim. The Indemnifying Party shall have the right, upon exercisable by written notice (the “Notice”) to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of such any Third Party Claim, to assume the defense thereof at the expense of the Indemnifying such Third Party with Claim, using counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes shall fail to assume the defense of such the Third Party ClaimClaim within such thirty (30) day period, the Indemnified Party shall have the right to employ separate counsel and to participate in undertake the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party elects to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes assume the defense of a any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, discharge such Third Party Claim without the Indemnifying Party’s prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party’s business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld).
(cd) In Whether or not the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve chooses to defend or prosecute any claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim being asserted against or sought Claim, and making employees available on a mutually convenient basis to be collected from such Indemnified Partyprovide additional information and explanation of any material provided hereunder, and the Indemnifying Party shall reimburse the Indemnified Party shall deliver notice of such claim for all its reasonable out-of-pocket expenses in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureconnection therewith.
Appears in 1 contract
Sources: Stock Purchase Agreement (Valiant Health Care, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “"Indemnifying Party”") promptly in writing (and in reasonable detail) of the Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticeClaim; provided, however, that failure to give such notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days' after the Indemnified Party's receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the fees and expenses of such counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall be at the expense have failed to give notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying Party assumes the defense of any chooses to defend or prosecute a Third Party Claim, all the Indemnified Party Parties shall cooperate with in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Party's request) the provision to the Indemnifying Party all witnesses, pertinent records, materials of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of 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, which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 7.02 or 7.03 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article 10 Section 7.02 or 7.03, except to the extent that the Indemnifying Party is demonstrates that it has been prejudiced by such failure.. If the Indemnifying Party disputes its liability with respect to such claim, the Indemnifying Party
Appears in 1 contract
Sources: Asset Purchase Agreement (King Pharmaceuticals Inc)
Procedures. (a) In order for case any claim is made, or any suit or action is commenced, against a Purchaser Indemnitee Bank Indemnified Party or Company Indemnitee Indemnified Party, the Party in respect of which indemnification may be sought under this ARTICLE 16 (including for the benefit of its officers, directors, employees, agents or representatives or any Person claiming by or through any of them) (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against shall promptly give the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the other party against whom indemnity is sought (the “Indemnifying Party”) promptly notice thereof and the Indemnifying Party shall be entitled to participate in the defense thereof and, with prior written notice to the Indemnified Party given not later than twenty (20) days after receipt the delivery of the applicable notice, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to 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 will not be liable to such Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyinvestigation.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate its own counsel and if the Indemnifying Party elects to participate in the defense thereofassume such defense, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If ’s expense, unless § the employment of such counsel has been authorized in writing by the Indemnifying Party, § the Indemnifying Party assumes has not employed counsel to take charge of the defense within twenty (20) days after delivery of any Third Party Claimthe applicable notice or, having elected to assume such defense, thereafter ceases its defense of such action, or § the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make has reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party all witnesses, pertinent records, materials and information (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required ), in any of which event attorneys’ fees and expenses shall be borne by the Indemnifying Party. If .
(c) The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party assumes desires not to assume, or participate in the defense of, any such claim, suit or action.
(d) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to settle or compromise any Third Party Claimclaim, suit or action against the Indemnified Party shall agree to any settlementin respect of which payments may be sought by the Indemnified Party hereunder, compromise or discharge of such Third Party Claim that and § the Indemnifying Party may recommend and that by its terms obligates settle or compromise any such claim, suit or action solely for the Indemnifying Party to pay the full amount payment of the liability in connection with such Third Party Claimmoney damages, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party but shall not admit agree to any liability with respect to, other settlement or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (of the Indemnified Party, which consent shall not be unreasonably withheld, and § the Indemnified Party may settle or compromise any such claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not settle or compromise any other matter without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
(ce) In Notwithstanding any provision contained in this Section 16.3 to the event any Indemnified Party should have a claim against any contrary, the Indemnifying Party hereunder shall not knowingly take any position or action in any pending litigation that does not involve a Third Party Claim being asserted against or sought would be reasonably likely to be collected from such Indemnified Party, adverse to the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release without the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureIndemnified Party’s express prior written consent.
Appears in 1 contract
Sources: Credit Card Program Agreement (Ascena Retail Group, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “"Indemnified Party”) "), to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person person against the Indemnified Party (a “"Third Party Claim”"), such Indemnified Party shall deliver notice thereof to must notify the party against whom indemnity indemnification is sought (the “"Indemnifying Party”) "), in writing of the Third Party Claim promptly after following receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticeClaim; provided, however, that failure to give such notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent that the Indemnifying Party is shall have been actually and materially prejudiced by as a result of such failure. For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, promptly following the Indemnified Party's receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties the Third Party Claim and covenants under this Agreement and shall not apply also addressed to any other agreement or instrument entered into between Purchaser and the CompanyIndemnifying Party.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party; provided that such counsel is not reasonably objected to by the Indemnified Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof unless the Indemnifying Party has failed to promptly assume the defense of a Third Party Claim after receipt of notice of the commencement thereof or if there are defenses available to the Indemnifying Party and the Indemnified Party which are sufficiently disparate and several such that continued representation by one counsel (or firm of counsel) of both the Indemnifying and the Indemnified Parties would materially prejudice the assertion or prosecution of such defenses or otherwise result in a conflict of interest for such counsel. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but at its own expense, separate from the fees and expenses of counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such counsel shall be at the expense of the Indemnified Partydefense. If the Indemnifying Party assumes the defense of any chooses to defend or prosecute a Third Party Claim, all the Indemnified Party Parties shall cooperate with in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Party's request) the provision to the Indemnifying Party all witnesses, pertinent records, materials of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld).
(c) In . If the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve assumes the defense of a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall deliver notice agree to any settlement, compromise or discharge of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying a Third Party from any of its obligations under this Article 10 except to the extent Claim that the Indemnifying Party is prejudiced may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such failureThird Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party that the Indemnified Party reasonably determines, after conferring with its outside 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 1 contract
Procedures. The Party seeking to be indemnified pursuant to this Section 12 (a) In order for a Purchaser Indemnitee or Company Indemnitee (as applicable, the “Indemnified Party”) to shall be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party hereunder only: (a “Third Party Claim”), such Indemnified Party shall deliver i) if it gives written notice thereof to the party against whom indemnity is sought Party obligated to provide such indemnification hereunder (the “Indemnifying Party”) promptly of any losses or claims, suits, or proceedings by Third Parties which may give rise to a claim for indemnification with reasonable promptness after receipt by such Indemnified Party of receiving written notice of such claim (or, in the Third Party Claim case of a proceeding, is served in accordance with Section 10.6. The failure to provide such noticeproceeding) or becoming aware of any such loss; provided, however, that failure to give such notice shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 obligation to provide indemnification, except if and to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. For thereby, and (ii) once the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice confirms in writing to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, that it is prepared to assume the defense thereof at the expense of its indemnification obligations hereunder, the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes has sole control over the defense of such Third Party Claimthe claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to employ separate be represented by its own counsel and at its own cost in such matters. Notwithstanding the foregoing, (x) no Indemnifying Party shall have the right to participate assume control over the assertion of any claim, or the commencement of any action, in the defense thereof, but the fees and expenses of such counsel shall be at the expense either case with respect to Taxes of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim provided 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit settle or resolve any liability with respect tosuch claim or action if doing would reasonably be expected to adversely impact the Indemnifying Party, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without including increasing the Indemnifying Party’s obligations pursuant to this Agreement, without the prior written consent (of the Indemnifying Party, which consent shall not be unreasonably withheld).
, conditioned or delayed; and (cy) In the event Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party should have a claim against to make any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against admission, or sought to be collected from such take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, the Indemnified which shall not be unreasonably withheld, conditioned or delayed. Each Party shall deliver notice reasonably cooperate with the other Party and its counsel in the course of the defense of any such claim in accordance with Section 10.6. The failure suit, claim, or demand, such cooperation to include using reasonable efforts to provide such noticeor make available documents, howeverinformation, shall not release the Indemnifying Party from any of its obligations under this Article 10 except and witnesses and to the extent that the Indemnifying Party is prejudiced by such failuremitigate damages.
Appears in 1 contract
Sources: Sales Agency and Aftermarket Support Agreement (FREYR Battery, Inc. /DE/)
Procedures. (a) In order for a Purchaser Indemnitee A party seeking indemnification pursuant to Sections 7.2 or Company Indemnitee 7.3 (an "Indemnified Party") shall give prompt notice to the party from whom such indemnification is sought (the “Indemnified "Indemnifying Party”") to be entitled to of the assertion of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made assessment, or the commencement of any action, suit, audit or proceeding, by any Person against the Indemnified Party a third party in respect of which indemnity may be sought hereunder (a “"Third Party Claim”") and will give the Indemnifying Party such information with respect thereto as the Indemnifying Party may reasonably request, but no failure to give such notice shall relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual prejudice thereby). Thereafter, such the Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”, within five (5) promptly business days after the Indemnified Party's receipt thereof, copies of all notices and documents (including court papers) received by such the Indemnified Party of written notice of relating to the Third Party Claim in accordance with Section 10.6Claim. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon exercisable by written notice (the "Notice") to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement or assertion of such any Third Party Claim, to assume the defense thereof at the expense of the Indemnifying such Third Party with Claim, using counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes shall fail to assume the defense of such the Third Party ClaimClaim within such thirty (30) day period, the Indemnified Party shall have the right to employ separate counsel and to participate in undertake the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that on behalf of the Indemnifying Party. Regardless of whether the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party elects to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes assume the defense of a any such Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, discharge such Third Party Claim without the Indemnifying Party’s 's prior written consent.
(b) The Indemnifying Party or the Indemnified Party, as the case may be, shall in any event have the right to participate, at its own expense, in the defense of any Third Party Claim which the other is defending.
(c) The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim in accordance with the terms hereof, shall have the right, upon five (5) days prior written notice to the Indemnified Party, to consent to the entry of judgment with respect to, or otherwise settle such Third Party Claim provided the Indemnifying Party agrees that as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge such judgment or settlement unless (i) the Third Party Claim involves equitable or other non-monetary damages or (ii) in the reasonable judgment of the Indemnified Party such settlement would have a continuing material adverse effect on the Indemnified Party's business (including any material impairment of its relationships with customers and suppliers), in which case such settlement only may be made with the written consent of the Indemnified Party, which consent shall not be unreasonably withheld).
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does Whether or not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from chooses to defend or prosecute any of its obligations under this Article 10 except claim involving a third party, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith. Such cooperation shall include access during normal business hours afforded to the extent that the Indemnifying Party is prejudiced by of records and information which are reasonably relevant to such failure.Third Party Claim, and making employees available on a mutually convenient basis to provide additional
Appears in 1 contract
Sources: Stock Purchase Agreement (O2wireless Solutions Inc)
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee a Seller Indemnified Party (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Third-Party Claim”), such Indemnified Party shall deliver written notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Third-Party Claim in accordance and shall provide the Indemnifying party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request, including reasonable detail of the basis for the Third-Party Claim, and, to the extent reasonably practicable, a reasonable estimate of the amount of such Third-Party Claim (such notice, a “Third-Party Claim Notice”). The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third-Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third-Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest; provided, that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be responsible for the fees and expenses of more than one separate counsel (in addition to any local counsel) for the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third-Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of such Third Party Claim that wrongdoing, (ii) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely from all liability in connection with respect of such Third Third-Party Claim. Whether Claim or not (iii) imposes equitable remedies or any obligation on the Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder.
(c) If the Indemnifying Party assumes the defense of a Third any Third-Party Claim, then the Indemnifying Party shall promptly pay to the Indemnified Party shall not admit as and when invoices are received by the Indemnifying Party the amount of any liability invoices for reasonable attorneys’ fees incurred by the Indemnified Party in accordance with respect toSection 8.4(b), or settle, compromise or discharge, or offer other Losses for which the Indemnified party is entitled to settle, compromise or discharge, such Third be indemnified under this Article VIII. If the Indemnifying Party has not elected to assume the defense of a Third-Party Claim without but either (i) the Indemnifying Party has acknowledged in writing its obligation to indemnify the Indemnified Party against Losses that may result in connection with such Third-Party Claim or (ii) a court of competent jurisdiction has determined that the Indemnifying Party is required hereunder to indemnify such Losses, then in either such case the indemnification required hereunder in respect of such Losses shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when invoices are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party’s prior written consent .
(which consent d) The Indemnifying Party shall not be unreasonably withheld)entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(ce) In the event any Indemnified Party should have has a claim against any Indemnifying Party hereunder that does not involve a Third Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall promptly deliver written notice of such claim in accordance with (a “Claim Notice”) to the Indemnifying Party, including reasonable detail of the basis for such claim and, to the extent reasonably practicable, a good faith estimate of the amount of such claim. Subject to Section 10.6. The 8.5(a), the failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 20 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(f) Notwithstanding the provisions of Section 10.8, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A Person entitled to receive indemnification under this Article VIII (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as from a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) shall give written notice to the Indemnifying Party of any claim with respect to which it seeks indemnification as promptly as reasonably practicable after receipt the discovery by such Indemnified Party of written any matters giving rise to a claim for indemnification; provided that the failure of any Indemnified Party to give notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, as provided herein shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 except VIII unless (and solely to the extent extent) that the Indemnifying Party is shall have been materially prejudiced by the failure of such failureIndemnified Party to so notify such Indemnifying Party. For Such notice shall describe in reasonable detail the avoidance nature of doubtsuch claim, identify the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches Sections of representations, warranties and covenants under this Agreement that form the basis of such claim, attach copies of all material written evidence thereof received from any third party to the date of such notice and shall not apply set forth the estimated amount of indemnifiable Losses relating thereto to any other agreement or instrument entered into between Purchaser and the Companyextent reasonably estimable.
(b) The If an Action is brought against an Indemnified Party by a third party, the Indemnifying Party shall have the rightbe entitled to, upon by written notice to the Indemnified Party within 30 days of receipt of notice from Party, assume control of, and conduct the defense of, such Action with counsel reasonably acceptable to the Indemnified Party of and, in such case, shall not be liable for legal or other expenses incurred by the commencement Indemnified Party in connection with the defense of such Third Action following the assumption of such defense; provided that the Indemnifying Party Claim, shall not be permitted to assume the defense thereof at of an Action, and shall be required to be liable for reasonable legal or other expenses incurred by the expense Indemnified Party in connection with the defense of such Action, in the event (x) the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Party with counsel selected by or that there is otherwise a conflict of interest between the Indemnified Party and the Indemnifying Party and or (y) the Indemnifying Party has failed within a reasonable timeframe to retain counsel reasonably satisfactory to the Indemnified Party. If In the event the Indemnifying Party assumes the defense of does assume such Third Party Claimcontrol and defense, the Indemnified Party shall have the right be entitled to employ hire, at its own expense, separate counsel and to participate in (but not control) the defense thereof, but . The Indemnifying Party shall reimburse the Indemnified Parties for all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and expenses of disbursements) as they are incurred in connection with investigating, preparing to defend or defending any such counsel shall be at the expense of the Action (including any inquiry or investigation) whether or not an Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claimis a party thereto unless, in each case, the Indemnified Party shall cooperate with the Indemnifying Party in Parties are not entitled to reimbursement of such defense and make available expenses pursuant to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense terms of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)this Section 8.04.
(c) In the event any Indemnified Party should have a claim against any The Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from be liable for any settlement of any Action without its obligations under this Article 10 except to the extent written consent; provided that the Indemnifying Party shall not unreasonably withhold, delay or condition its consent. The Indemnifying Party further agrees that it will not, without the Indemnified Party’s prior written consent, settle or compromise any Action or consent to entry of any judgment in respect thereof in any pending or threatened Action in respect of which indemnification may be sought hereunder (whether or not any Indemnified Party is prejudiced an actual or potential party to such Action) unless such settlement or compromise (x) includes an unconditional release of each Indemnified Party from all liability arising out of such Action, (y) does not include an admission of fault, culpability or a failure to act by such failureany of the Indemnified Parties and (z) does not impose any material obligation on the Indemnified Party or its Affiliates.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kansas City Power & Light Co)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”) to be entitled to shall promptly notify the party liable for such indemnification (the “Indemnifying Party”) in writing of any indemnification provided for under this Agreement as a result of a Indemnified Liability pending or a threatened claim or demand made that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by any Person a third party against the Indemnified Party (Party, such claim being a “Third Party Claim”), such Indemnified Party shall deliver notice thereof describing in reasonable detail the facts and circumstances with respect to the party against whom indemnity is sought (subject matter of such claim or demand; provided that the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under the Seller Reimbursement Provisions, the Purchaser Reimbursement Provisions and this Article 10 IX, except to the extent that the Indemnifying Party is prejudiced by such failure. For failure (as determined by a court of competent jurisdiction), it being agreed that notices for claims in respect of a breach of a covenant or agreement must be delivered prior to the avoidance expiration of doubt, the indemnification provisions and procedures contained any applicable survival period specified in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement Section 9.1 for such covenant or instrument entered into between Purchaser and the Companyagreement.
(b) The Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to the Seller Reimbursement Provisions, the Purchaser Reimbursement Provisions, Section 9.2(a) or Section 9.3(a), the Indemnifying Party shall have the rightwill be entitled, upon written by notice to the Indemnified Party delivered within 30 days twenty (20) Business Days of the receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof or settlement of such Third Party Claim (at the expense of such Indemnifying Party); provided that the Indemnifying Party shall not be entitled to assume, and the Indemnified Party will be entitled to have control over, the defense or settlement of such Third Party Claim, if (i) the Third Party Claim relates to, arises in connection with counsel selected by or involves any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnifying Third Party and reasonably satisfactory Claim seeks an injunction or equitable relief against the Indemnified Party that would, in the reasonable belief of the Indemnified Party, be detrimental to its reputation, (iii) any insurer, including the insurer under the R&W Insurance Policy, requires, as a condition to the Indemnified Party. If ’s eligibility to recover insurance proceeds on account of such Third Party Claim, that such insurer control the matter, (iv) the Indemnified Party has been advised in writing by legal counsel that a conflict of interest exists which, under applicable principles of legal ethics, would prohibit a single legal counsel from representing both the Indemnified Party and the Indemnifying Party in such Third Party Claim or (iv) such Third Party Claim involves a dispute on the primary commercial relationship with a material customer or supplier of the Indemnified Party and, in the reasonable opinion of the Indemnified Party, if such material customer or supplier (as applicable) prevailed in all material respects in such Third Party Claim would have a Business Material Adverse Effect or a material adverse effect on Seller’s Retained Businesses; provided, further, that if the Indemnifying Party assumes the defense and control of such Third Party Claim, the Indemnifying Party shall allow the Indemnified Party shall have the right to employ separate counsel and a reasonable opportunity to participate in the defense thereof, but the fees and expenses of such Third Party Claim with its own counsel shall be and at its own expense, subject to the expense of Indemnifying Party’s right to control the Indemnified Partydefense and settlement thereof. If the Indemnifying Party assumes does not assume the defense and settlement of any Third Party Claim pursuant to this Section 9.4(b), the Indemnified Party shall be entitled to assume and control such defense and settlement, but the Indemnifying Party may nonetheless participate in the defense and settlement of such Third Party Claim with its own counsel and at its own expense, subject to the Indemnified Party’s right to control the defense and settlement thereof. Purchaser or Seller, as the case may be, shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense including by furnishing Books and make available to the Indemnifying Party all Records, personnel and witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Partyappropriate for any defense of such Third Party Claim. If the Indemnifying Party assumes has assumed the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any Judgment arising from, any Third Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided that such settlement or Judgment does not involve any injunctive or other equitable relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates and provides for the unconditional release of the Indemnified Party shall not admit any liability and its Affiliates from all Liabilities with respect to, to such Third Party Claim. No Indemnified Party will consent to the entry of any Judgment or settle, enter into any settlement or compromise or discharge, or offer with respect to settle, compromise or discharge, such a Third Party Claim without the Indemnifying Party’s prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Article VIII of this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person (including notice of the commencement of any legal proceeding, threat, audit or examination) against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof (which in the case of Parent shall be in the form of an Officer’s Certificate) to the party against whom indemnity is sought Shareholder Representative, on behalf of the Indemnifying Shareholders and the Consenting Optionholders, or to Parent, as applicable (the “Indemnifying Party”, for avoidance of doubt, the Indemnifying Shareholders and Consenting Optionholders are collectively the “Indemnifying Party” as such term is used in this Agreement and not each individually the “Indemnifying Party”) promptly after receipt by and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request (but, at a minimum, shall provide the following: (i) the amount of such Losses (which, in the case of Losses not yet incurred or paid may be the maximum amount reasonably likely to be incurred or paid), including a statement of the number of shares of Parent Common Stock representing such claim, and identifying the specific clause or clauses of this Agreement pursuant to which an Indemnified Party is entitled to indemnification, and (ii) specifying in reasonable detail (based upon the information then possessed) the facts and circumstances related to the breach and the individual items of written notice of the Third Party Claim such Losses arising out of, resulting from or in accordance connection with Section 10.6such breach). The failure to provide such noticenotice or any delay in providing it, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For failure or delay (other than in the avoidance of doubt, event that such notice is provided after the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants applicable time by which a claim must be made under this Agreement as provided in Section 8.1(b)). If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and shall all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement (and if such Third Party Claim does not apply attempt to impose equitable remedies or any obligation on the Indemnified Party other agreement or instrument entered into between Purchaser and than solely the Company.
(b) The payment of money damages for which the Indemnified Party will be indemnified hereunder), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party ClaimClaim at the Indemnifying Party’s sole cost and expense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such Indemnified Party’s counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of such Third Party Claim that wrongdoing, (B) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the Indemnified Party from all liability in connection with respect of such Third Party Claim, and which releases (C) imposes equitable remedies or any obligation on the Indemnified Party completely other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder, or (D) could affect the liability of Parent, the Company or their Affiliates in connection with periods not specifically addressed in such Third Party Claim. Whether or not the The Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit be entitled to require that any liability with respect to, action be made or settle, compromise brought against any other Person before action is brought or discharge, or offer to settle, compromise or discharge, such Third Party Claim without is made against it hereunder by the Indemnifying Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld).
(cb) In the event If any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party (which in accordance the case of Parent shall be in the form of an Officer’s Certificate) and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request (but, at a minimum, shall provide the following: (i) the amount of such Losses (which, in the case of Losses not yet incurred or paid may be the maximum amount reasonably likely to be incurred or paid), and identifying the specific clause or clauses of this Agreement pursuant to which an Indemnified Party is entitled to indemnification, (ii) specifying in reasonable detail (based upon the information then possessed) the facts and circumstances related to the breach and the individual items of such Losses arising out of, resulting from or in connection with such breach). The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII (other than in the event that such notice is provided after the applicable time by which a claim must be made under this Agreement as provided in Section 8.1(b)). If the Indemnifying Party does not notify the Indemnified Party within twenty days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference, which payment in the case of indemnification pursuant to Section 8.2 shall be made by pro rata and severally by forfeiture of shares of Parent Common Stock held in the Indemnity Escrow Fund and forfeiture of Parent Options by Consenting Optionholders.
(c) At any time on or before the termination of the Indemnity Escrow Fund, upon receipt by the Escrow Agent of a certificate signed by any officer of Parent (an “Officer’s Certificate”): (A) stating that Parent has paid or properly accrued or reasonably anticipates that it will have to pay or accrue Losses, and (B) specifying in reasonable detail the individual items of Losses included in the amount so stated, or the basis for such anticipated Liability, and the nature of the misrepresentation, breach of warranty or covenant to which such item is related and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request (but, at a minimum, shall provide the following: (i) the amount of such Losses (which, in the case of Losses not yet incurred or paid may be the maximum amount reasonably likely to be incurred or paid), including a statement of the number of shares of Parent Common Stock representing such claim, and identifying the specific clause or clauses of this Agreement pursuant to which an Indemnified Party is entitled to indemnification, and (ii) specifying in reasonable detail (based upon the information then possessed) the facts and circumstances related to the breach and the individual items of such Losses arising out of, resulting from or in connection with such breach), the Escrow Agent shall, subject to the provisions of Section 8.4(e) hereof, deliver to Parent out of the Indemnity Escrow Fund, as promptly as practicable, shares of Parent Common Stock held in the Indemnity Escrow Fund having a value, determined in accordance with
Appears in 1 contract
Sources: Merger Agreement (Amazon Com Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Party”) promptly in writing (and in reasonable detail) of the Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticeClaim; provided, however, that failure to give such notification shall not release affect the Indemnifying Party from any of its obligations indemnification provided under this Article 10 Agreement except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five (5) business days after the Indemnified Party’s receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably satisfactory elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the fees and expenses of such counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall be at the expense have failed to give notice of the Indemnified PartyThird Party Claim as provided above). If the Indemnifying Party assumes the defense of any chooses to defend or prosecute a Third Party Claim, all the Indemnified Party Parties shall cooperate with in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Party’s request) the provision to the Indemnifying Party all witnesses, pertinent records, materials of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided under this Agreement. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of 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, which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 15.02 or 15.03 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure by any Indemnified Party to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article 10 Section 15.02 or 15.03, except to the extent that the Indemnifying Party is demonstrates that it has been prejudiced by such failure. If the Indemnifying Party disputes 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 and, if not resolved through negotiations, such dispute shall be resolved in accordance with Section 16.12.
Appears in 1 contract
Sources: License and Supply Agreement (Women First Healthcare Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The party seeking indemnification under this Article VIII (the “Indemnified Party”) agrees to give prompt notice (the “Notice of Claim”) to the indemnifying party (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding by a third party in respect of which indemnity may be entitled sought under this Article VIII describing in reasonable detail the facts giving rise to any claim of indemnification provided for under this Agreement as a result hereunder; provided, however, that no delay on the part of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent that the Indemnifying Party clearly demonstrates that the defense of any third party suit, action or proceeding has been materially prejudiced by the Indemnified Party’s failure to give such notice.
(b) If such Notice of Claim relates to a suit, action or proceeding by a third party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, may upon written notice given to the Indemnified Party within 30 thirty (30) days of the receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and of such Notice of Claim, assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense does not so assume control of such Third defense or if the Indemnifying Party Claimfails to give reasonable written assurance to the Indemnified Party of the Indemnifying Party’s financial capacity to defend and/or provide indemnification as required hereby, the Indemnified Party shall have the right to employ separate counsel and to control such defense. The party not controlling such defense may participate in the defense thereof, but the fees and expenses of such counsel shall be therein at the expense of the Indemnified Partyits own expense. If the Indemnifying Party assumes the defense of any Third Party Claim, the The Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not be liable for expenses incurred after the Indemnifying Party assumes the defense of a Third third party claim as set forth herein; provided, however, that (i) if in the reasonable opinion of counsel for the Indemnified Party, the Indemnifying Party Claimassumes control of such defense and there exists a conflict of interest between the interests of the Indemnified Party and those of the Indemnifying Party with respect to such claim, or (ii) if the Indemnifying Party shall fail to assume responsibility for such defense, the Indemnified Party may retain counsel satisfactory to it and the reasonable fees and expenses of counsel to the Indemnified Party shall not admit be considered Losses for purposes of this Agreement. Notwithstanding anything to the contrary contained herein, in the event that the Buyer reasonably determines that a third party claim would materially adversely affect the Buyer’s ability to conduct the Business after the Closing Date (including, for example, if the Buyer reasonably determines, in connection with any liability with respect tosuch third party claim, that the Buyer’s ability to conduct a material portion of the Business may be enjoined), then the Buyer may, by written notice to the Seller, assume the exclusive right to control, defend, compromise, or settlesettle such claim and the reasonable fees and expenses of counsel shall be considered Losses for purposes of this Agreement. In all such cases, compromise or dischargethe Indemnifying Party will have the right to participate, or offer to settle, compromise or discharge, such Third Party Claim without the at Indemnifying Party’s expense, in the defense or settlement of such claim with counsel reasonably satisfactory to the Buyer. The party controlling such defense shall keep the other party advised of the status of such action, suit or proceeding and the defense thereof and shall consider in good faith recommendations made by the other party with respect thereto. In any circumstance in which the Indemnified Party assumes the defense of any claim, the Indemnifying Party shall only be responsible for the costs and expenses of one counsel representing the interests of the Indemnified Party.
(c) The Indemnifying Party shall not agree to any settlement of any action, suit or proceeding without the prior written consent (of the Indemnified Party, which consent shall not be unreasonably withheld)withheld or delayed. For purposes hereof, the Indemnified Party’s withholding of its consent to any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a complete irrevocable release from all liability in respect to such claim or litigation or which requires action (or limits action) other than the payment of money by the Indemnifying Party shall be deemed to be reasonable.
(cd) In the event any that an Indemnified Party should have seeks indemnification for Losses pursuant to this Article VIII, the procedures in this subsection (d) shall also apply. Within ninety (90) days after delivery of a claim against any Notice of Claim, the Indemnifying Party hereunder shall provide to the Indemnified Party a written response (the “Response Notice”) in which the Indemnifying Party must either: (i) agree that some or all of the Losses claimed should be indemnified and, in the case of any Losses claimed and not so agreed to, contest such claimed amount, or (ii) contest all of the Losses claimed. The Indemnifying Party may contest such claimed amount of Losses only based upon a good faith belief that all or such portion of such claimed amount does not involve a Third constitute Losses for which the Indemnified Party Claim being asserted against is entitled to indemnification hereunder. If no such Response Notice is delivered by the Indemnifying Party within such ninety (90)-day period, the Indemnifying Party shall be deemed to have agreed that all of the claimed amount should be indemnified. Any such amount agreed to, or sought so deemed to be collected from such Indemnified Partyagreed to, by the Indemnifying Party pursuant to clause (i) or (ii) of this subsection (d) or otherwise pursuant to this Agreement being referred to herein as an “Agreed Amount.”
(e) If the Indemnifying Party in the Response Notice contests all or part of the claimed amount (thereupon, the “Contested Amount”), the Indemnifying Party and the Indemnified Party shall deliver notice attempt promptly and in good faith to agree upon the rights of the parties with respect to the Contested Amount. If the Indemnifying Party and the Indemnified Party should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and, if such agreement provides that all or a portion of the Contested Amount is to be paid to the Indemnified Party (all or such portion of such claim Contested Amount to be so paid to the Indemnified Party being also referred to herein as an “Agreed Amount”), the Indemnifying Party shall make such payments in accordance with Section 10.6the terms of this Agreement. The failure to provide If no such notice, however, shall not release agreement can be reached after good faith negotiation within thirty (30) days of the delivery of the Indemnifying Party from any of its obligations under this Article 10 except to Response Notice (or such longer period as the extent that the Indemnified Party and Indemnifying Party is prejudiced by such failuremay mutually agree), the matter shall be settled in accordance with the dispute resolution provisions of Section 10.11 of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Kopin Corp)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The party seeking indemnification under Section 7.2 (the “Indemnified Party”) agrees to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third assertion of any claim, or the commencement of any suit, action or proceeding (“Claim”) in respect of which indemnity may be sought under such Section and will provide the Indemnifying Party Claim in accordance such information with Section 10.6respect thereto that the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release so notify the Indemnifying Party from any shall not relieve the Indemnifying Party of its obligations under this Article 10 hereunder, except to the extent that such failure shall have adversely prejudiced the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyParty.
(b) The Indemnifying Indemnified Party shall have obtain the right, upon prior written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense consent of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of any Claim asserted by any third party (“Third Party Claim”).
(c) In Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the event defense or prosecution of any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against and shall furnish or sought cause to be collected from furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(d) Each Indemnified Party must mitigate in accordance with applicable Law any loss for which such Indemnified PartyParty seeks indemnification under this Agreement. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release must promptly notify the Indemnifying Party from any of its obligations under this Article 10 except and promptly pay to the extent that the Indemnifying Party is prejudiced the extent of the value of the benefit (or, if less, the amount of any such loss previously paid by such failurethe Indemnifying Party) to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation).
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 7.2.
Appears in 1 contract
Sources: Merger Agreement (Gigamon Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee Party (the “Indemnified Party”"INDEMNIFIED PARTY") to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”"THIRD PARTY CLAIM"), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Party”"INDEMNIFYING PARTY") promptly in writing (and in reasonable detail) of the Third Party Claim within fifteen (15) Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The Claim; PROVIDED, HOWEVER, that failure to provide give such notice, however, notification shall not release affect the Indemnifying Party from any of its obligations under this Article 10 indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party is prejudiced by shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such failurenotice). For the avoidance of doubtThereafter, the indemnification provisions Indemnified Party shall deliver to the Indemnifying Party, within five Business Days' after the Indemnified Party's receipt thereof, copies of all notices and procedures contained in this Article 10 shall apply only documents (including court papers) received by the Indemnified Party relating to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyThird Party Claim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimif it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claimsuch defense, the Indemnified Party shall agree have the right to any settlementparticipate in the defense thereof and to employ counsel, compromise or discharge of such Third Party Claim at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party may recommend shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and that expenses of counsel employed by its terms obligates the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to pay the full amount give notice of the liability Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all Indemnified Parties shall cooperate in connection with the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party's request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and which releases the Indemnified Party completely in connection with making employees and Representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder or other matters reasonably related to such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s 's prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of 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 Losses in connection with such Third Party Claim, which releases the Indemnified Party completely in connection with such Third Party Claim and that would not otherwise materially adversely affect the Indemnified Party.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under SECTION 10.1 or 10.2 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party, but in accordance with Section 10.6any event not later than five (5) Business Days after the Indemnified Party determines that it has or could have a claim to indemnification hereunder, stating the amount of Loss, if known, and method of computation thereof, and containing a specific reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The failure by any Indemnified Party so to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations indemnification obligation that it may have to such Indemnified Party under this Article 10 SECTION 10.1 or 10.2, as applicable, except to the extent that the Indemnifying Party is prejudiced by such failure. If the Indemnifying Party disputes that it has an indemnification obligation with respect to such claim, the Indemnifying Party shall deliver notice of such dispute with reasonable promptness and the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute for a period of thirty (30) days following the receipt by the Indemnified Party of such dispute notice. If the Indemnified Party and the Indemnifying Party have not resolved such dispute during such time period through good faith negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction or other mutually agreeable non-judicial dispute resolution mechanism.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee A Person or Company Indemnitee Persons seeking indemnification pursuant to this Article X (the “"Indemnified Party”") shall give the party or parties from which indemnification is sought (the "Indemnifying Party") a written notice of claim promptly and in any event within thirty (30) days of the discovery of any Loss in respect of which the right to indemnification contained in this Article X may be entitled claimed; provided, however, that the failure to give such notice within such period shall not result in the waiver or loss of any indemnification provided for right to bring such claim hereunder after such period, but any such failure shall relieve the Indemnifying Party of liability to the extent the Indemnifying Party has been damaged or prejudiced by such failure. However, neither AT&T nor BellSouth shall have any liability under this Article X or under this Agreement as or otherwise for breach or inaccuracy of representation or warranty, unless a result notice of a claim or notice of the Indemnified Liability or Party's reasonable determination that a claim exists based on the existing facts and circumstances therefor is delivered by the Indemnified Party prior to the expiration of the survival period set forth in Section 11.03, if applicable. Any notice of claim shall set forth, to the extent known by the Indemnified Party at the time the claim is made, the representations, warranties, covenants, or agreements with respect to which the claim is made, the specific facts giving rise to and alleged basis for the claim and a good faith (but non-binding) estimate of the amount of liability asserted by reason of the claim.
(b) Each Indemnified Party shall promptly notify the Indemnifying Party in writing of the making by a third person of any demand made by any Person or claim against the Indemnified Party which, if determined adversely to the Indemnified Party or after the lapse of time would be grounds for indemnification by the Indemnifying Party under this Article X (a “"Third Party Claim”"), such Indemnified Party . Such notice shall deliver notice thereof contain factual information (to the party against whom indemnity is sought (extent known to the “Indemnifying Indemnified Party”) promptly after receipt by such Indemnified Party of written notice of describing the Third Party Claim in accordance reasonable detail and shall include copies of any notice or other document received from any third person, including any Governmental Authority, in respect of such Third Party Claim. Except as in Sections 10.03(a) and 11.03 with Section 10.6. The failure respect to provide such noticesurvival, however, shall not release any delay on the part of the Indemnified Party in notifying the Indemnifying Party from any of its obligations under this Article 10 except Section 10.03(b) shall not result in the waiver or loss of any right to seek indemnification hereunder based on a Third Party Claim, but any such failure shall relieve the Indemnifying Party of liability to the extent that the Indemnifying Party is has been damaged or prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(bc) The Indemnifying Party shall have be entitled to participate in the right, upon written notice to the Indemnified Party within 30 days defense of receipt of notice from the Indemnified Party of the commencement of such any Third Party ClaimClaim and, if it so chooses, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party. Should the Indemnifying Party and reasonably satisfactory so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified PartyParty for any legal or other costs or expenses incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel (not reasonably objected to by the Indemnifying Party), but at its own expense, separate from the fees and expenses of counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such counsel defense; provided, however, that the Indemnified Party shall be entitled to participate in with separate counsel satisfactory to Indemnifying Party at the expense of the Indemnifying Party if in the reasonable written opinion of counsel provided to the Indemnified PartyParty and the Indemnifying Parties, a conflict or potential conflict exists between the Indemnified Party and the Indemnifying Parties that would make such separate representation required by ethical considerations. If the Indemnifying Party assumes the defense of any Parties choose to defend a Third Party Claim, all the Indemnified Party Parties shall cooperate with in the defense thereof. Such cooperation shall include the retention and (upon the Indemnifying Party in such defense and make available Parties' request) the provision to the Indemnifying Party all witnesses, pertinent records, materials of records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s Parties' prior written consent (which consent shall not be unreasonably withheld).
(c) In consent. If the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve assumes the defense of a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall deliver notice agree to any settlement, compromise or discharge of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying a Third Party from any of its obligations under this Article 10 except to the extent Claim that the Indemnifying Party may recommend and that by its terms (i) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, (ii) releases the Indemnified Party completely in connection with such Third Party Claim and (iii) would not otherwise adversely affect the Indemnified Party in any material respect.
(d) Notwithstanding anything to the contrary contained in this Article X, an Indemnified Party shall cooperate with the Indemnifying Party to obtain the benefits of any insurance coverage owned by the Indemnifying Party for any Third Party Claims that may be in effect. Nothing contained herein shall obligate any party to obtain, continue, or preserve at any time any insurance coverage for any period.
(e) The amount of any Losses of any Person under this Article X shall be reduced by the amount, if any, received by the Indemnified Party from any third party (including, without limitation, any insurance company or other insurance provider (such amount being referred to herein as a "Third Party Reimbursement")), in respect of the Losses suffered thereby. If, after receipt by an Indemnified Party of any indemnification payment hereunder, such person receives or becomes entitled to receive a Third Party Reimbursement in respect of the same Losses for which indemnification was made and such Third Party Reimbursement was not taken into account in assessing the amount of indemnification, then the Indemnified Party shall turn over all of such Third Party Reimbursement to the Indemnifying Party up to the amount of the indemnification paid pursuant hereto.
(f) Purchaser, AT&T and BellSouth shall cooperate with one another with respect to resolving any claim or liability with respect to which any party is prejudiced obligated to indemnify another party hereunder, including by making commercially reasonable efforts to mitigate or resolve any such failureclaim or liability. In the event that Purchaser, AT&T or BellSouth shall fail to make such commercially reasonable efforts, then notwithstanding anything else to the contrary contained herein, the applicable Indemnifying Party shall not be required to indemnify any Person for any Loss that could reasonably be expected to have been avoided if Purchaser, AT&T or BellSouth, as the case may be, had made such efforts.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Clearwire Corp)
Procedures. (a) In order A party making a claim for a Purchaser Indemnitee or Company Indemnitee (the indemnity under Section 8.02 is hereinafter referred to as an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to ” and the party against whom indemnity such claim is sought (asserted is hereinafter referred to as the “Indemnifying Party”) promptly after receipt .” All claims by such any Indemnified Party of written notice of the Third Party Claim under Section 8.02 hereof shall be asserted and resolved in accordance with Section 10.6the following provisions. The failure to provide such notice, however, shall not release the If any claim or demand for which an Indemnifying Party from any of its obligations under this Article 10 except would be liable to the extent that the Indemnifying an Indemnified Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party by a third party (each a “Third Party Claim”), said Indemnified Party shall with reasonable promptness notify in writing the Indemnifying Party of such claim or demand stating with reasonable specificity the circumstances of the Indemnified Party’s claim for indemnification; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent the rights of the Indemnifying Party are actually prejudiced or to the extent that any applicable period set forth in Section 8.01 has expired without such notice being given. After receipt by the Indemnifying Party of such notice, then upon reasonable notice from the Indemnifying Party to the Indemnified Party, or the request of the Indemnified Party, the Indemnifying Party shall defend, manage and conduct any proceedings, negotiations or communications involving any claimant whose claim is the subject of the Indemnified Party’s notice to the Indemnifying Party as set forth above, and shall take all actions necessary, including the posting of such bond or other security as may be required by any Governmental Authority, so as to enable the claim to be defended against or resolved without expense or other action by the Indemnified Party. Upon request of the Indemnifying Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure shall, to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except extent it may legally do so and to the extent that it is compensated in advance by the Indemnifying Party for any costs and expenses thereby incurred;
(i) take such action as the Indemnifying Party may reasonably request in connection with such action,
(ii) allow the Indemnifying Party to dispute such action in the name of the Indemnified Party and to conduct a defense to such action on behalf of the Indemnified Party, or
(iii) render to the Indemnifying Party all such assistance as the Indemnifying Party may reasonably request in connection with such dispute and defense.
(b) Notwithstanding anything to the contrary in Section 8.03(a) above, the Indemnifying Party shall not be entitled, or shall lose its right, as applicable, to contest, defend, litigate and settle a Third Party Claim if (i) there exists or is prejudiced reasonably likely to exist a conflict of interest that would make it inappropriate in the reasonable judgment of the Indemnified Party for the same counsel to represent both the Indemnifying Party and the Indemnified Party, (ii) the Indemnifying Party shall fail to diligently contest the Third Party Claim, (iii) such Third Party Claim involves remedies or disputes other than claims for monetary damages, or (iv) such Third Party Claim or the resolution thereof is reasonably likely to impair ongoing business relationships with any Customer, any Governmental Authority, or any other Person doing business with the Indemnified Party or any of its Affiliates.
(c) Subject to the limitations set forth in Section 8.02(a), the Company and the Stockholder specifically agree that any claims due and owing for indemnification by the Parent or VPRW against the Stockholder and the Company (or any of them) shall be first satisfied by deducting and otherwise offsetting such failureclaims against the Escrow Amount; and to the extent that there remain unsatisfied indemnification claims after the deductions and set-offs described above, the Parent and VPRW shall have full recourse against the Stockholder and the Company (including their assets of whatsoever kind or nature) for payment of such indemnification claims. Notwithstanding anything in this Agreement to the contrary, the Stockholder and the Company expressly agree that VPRW or the Parent may in good f▇▇▇▇ ▇▇▇▇▇▇ or compromise any individual claim for indemnity they make hereunder provided that the settlement or compromise does not (i) result in an adverse financial consequence to the Company or the Stockholder or (ii) impose any injunctive relief with respect to the Company or the Stockholder.
Appears in 1 contract
Procedures. (ai) In order for a Purchaser Indemnitee The Buyer Group Member or Company Indemnitee Seller Group Member seeking indemnification hereunder (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to give the party against whom indemnity is sought obligated to provide indemnification hereunder (the “Indemnifying Party”) promptly after receipt by written notice (an “Indemnification Claim Notice”) of any Damages or discovery of fact upon which such Indemnified Party of written notice of the Third Party Claim in accordance with intends to base a request for indemnification under Section 10.611.02(a) or Section 11.02(b), as applicable. The failure to provide give such notice, however, notice shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 hereunder except to the extent it shall have been prejudiced by such failure. Each Indemnification Claim Notice must contain a reasonable description of the claim and the nature and amount of such Damages (to the extent that the nature and amount of such Damages are known at such time). **Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The Indemnified Party shall furnish promptly to the Indemnifying Party is prejudiced by such failure. For the avoidance copies of doubt, the indemnification provisions all papers and procedures contained official documents received in this Article 10 shall apply only to breaches respect of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyDamages.
(bii) The After the giving of any Indemnification Claim Notice pursuant hereto, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (A) by the written agreement between the Indemnified Party and the Indemnifying Party; (B) by a final judgment or decree of any court of competent jurisdiction; or (C) by any other means to which the Indemnified Party and the Indemnifying Party shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party expired and reasonably satisfactory to the Indemnified Partyno appeal shall have been taken or when all appeals taken shall have been finally determined. If the Indemnifying Party assumes the defense of such Third Party Claim, the The Indemnified Party shall have the right to employ separate counsel and to participate burden of proof in establishing the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)Damages suffered by it.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Third-Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Third-Party Claim Claim, describing in accordance reasonable detail the facts giving rise to any claim for indemnification hereunder and the basis for indemnification (including the applicable provision of this Agreement alleged to have been breached and under which indemnification is being sought), an estimate in reasonable detail of the Losses incurred in connection therewith and (if applicable and if known), the method of computation of such amount and such other information with Section 10.6. The failure respect thereto as the Indemnifying Party may reasonably request, to provide such noticethe extent available; provided, however, that the failure to so notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations Liability under this Article 10 except Agreement with respect to such claim only if, and only to the extent that that, such failure to notify the Indemnifying Party is prejudiced results in (i) the forfeiture by the Indemnifying Party of rights and defenses otherwise available to the Indemnifying Party with respect to such failure. For claim or (ii) material prejudice to the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only Indemnifying Party with respect to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companysuch claim.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 sixty (60) days of receipt of notice from the Indemnified Party of the commencement of such Third Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, provided, that the Indemnifying Party shall not have the right to assume control of such defense if the claim over which the Indemnifying Party seeks to assume control (i) involves a claim which would be materially detrimental to or materially injure the Indemnified Party’s reputation, employee, customer, payor or other material business relations, (ii) primarily seeks non-monetary relief (except if the only non-monetary relief sought is a declaratory judgment), (iii) involves criminal allegations against the Indemnified Party, (iv) is one in which the Indemnifying Party is also a party and joint representation would be inappropriate due to conflicts of interest or there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party, (v) involves a claim which, upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend, (vi) such claim is by a Governmental Authority (other than if such claim relates to Taxes or the Other Businesses) or (vii) it is reasonably likely that damages will be awarded in excess of the Indemnifying Party’s cap on liability for Losses arising in connection therewith. If the Indemnifying Party assumes the defense of such Third Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof so long as such participation does not interfere with the Indemnifying Party’s defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If Party and at the sole cost of the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party ClaimParty. Whether or not the Indemnifying Party assumes the defense of a Third Third-Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Third-Party Claim without the Indemnifying Party’s prior written consent.
(c) If the Indemnifying Party is entitled to, and does assume the defense of a Third-Party Claim, no settlement or compromise thereof may be effected by the Indemnifying Party without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), provided, however, that such consent shall not be required if (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 without any obligation on the part of any Indemnified Party (other than an obligation to pay amounts being borne entirely by the Indemnifying Party) and (ii) the settlement agreement provides, as the sole relief, monetary damages that are paid in full by the Indemnifying Party and does not contain any sanction or restriction upon the conduct or operations of any business by the Indemnified Party or any of its Affiliates. Notwithstanding the foregoing and anything to the contrary herein, in the event that the Indemnifying Party provides prior written notice to the Indemnified Party of any settlement or compromise of, or offer to settle or compromise, any Third-Party Claim and the Indemnified Party withholds its consent to such settlement or compromise then, in the event the Indemnifying Party is determined to be liable for indemnification hereunder, in no event shall the Indemnifying Party be liable for indemnification in amount greater than the monetary amount contained in such settlement or compromise of, or offer to settle or compromise, any Third-Party Claim, plus any reasonable costs of defense as provided herein.
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters, at the sole cost of the Indemnifying Party. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters.
Appears in 1 contract
Procedures. (a) In order Whenever any claim shall arise for a Purchaser Indemnitee or Company Indemnitee indemnification hereunder, the party making the claim under this ARTICLE XI (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result shall promptly provide written notice of a Indemnified Liability or a such claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity such claim is sought asserted under this ARTICLE XI (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice); provided, however, shall not release that the failure to notify the Indemnifying Party from will not relieve the Indemnifying Party of any of its obligations under this Article 10 liability or obligation that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such claim is prejudiced by the Indemnified Party’s failure to give such failurenotice. For Such notice by the avoidance of doubt, Indemnified Party shall: (a) describe the indemnification provisions and procedures contained claim in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
reasonable detail; (b) The include copies of all material written evidence thereof; and (c) indicate the estimated amount, if known and reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any Action by a Person who is not a party to this Agreement, the Indemnifying Party shall have the rightParty, at its sole cost and expense and upon written notice to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement of such Third Party ClaimParty’s request for indemnification, to may assume the defense thereof at the expense of the Indemnifying Party any such Action with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense (and the Indemnified Party shall be entitled to have sole control over the defense and the Indemnifying Party shall be responsible for any reasonable attorneys’ fees or other reasonable expenses incurred by the Indemnified Party regarding its participation in the defense) of an Action if: (i) such Action involves criminal allegations against the Indemnified Party; (ii) such Action demands injunctive or other equitable relief against the Indemnified Party; (iii) the Indemnified Party reasonably determines, after consultation with its outside legal counsel, that a conflict of interest exists such that it would be inappropriate for a single counsel to represent both the Indemnifying Party and the Indemnified Party in connection with such Action under applicable standards of legal ethics; or (iv) such Action involves an amount equal to more than twice the amount that the Indemnifying Party would be responsible for indemnity hereunder; provided, however, that the Indemnified Party shall not, without the written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed), (A) settle or compromise any third-party Action or (B) permit a default or consent to entry of any judgment, in each case, unless the claimant and such party provide to such other party an unqualified release from all liability in respect of the third-party Action. If the Indemnifying Party assumes controls the defense of such Third Party Claiman Action, the Indemnified Party shall have the right to employ separate counsel and be entitled to participate in the defense of any such Action, with its counsel and at its own cost and expense, subject to the Indemnifying Party’s right to control the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes does not assume the defense of any Third Party Claimsuch Action, the Indemnified Party may, but shall not be obligated to, defend against such Action in such manner as it may deem appropriate, including settling such Action, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any Losses resulting therefrom. The Seller Representative (on behalf of the Sellers) and Purchaser shall cooperate with the Indemnifying Party each other in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information reasonable respects in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes connection with the defense of any Third Party Claimthird-party Action, including: (i) making available records relating to such claim; and (ii) furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Indemnified Party shall agree to any settlementdefending party, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount management employees of the liability in connection with such Third Party Claim, and which releases non-defending party as may be reasonably necessary for the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes preparation of the defense of a Third Party Claim, the Indemnified such claim. The Indemnifying Party shall not admit consent to the entry of a judgment or settle any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim Action without the Indemnifying Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice; provided, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party may settle any Action without the Indemnified Party’s prior written consent that (i) only involves the payment of monetary damages that are paid in full by the Indemnifying Party and does not include any requirement that the Indemnified Party take or refrain from taking any actions other than compliance with any nondisclosure obligations related to the terms of such settlement contained in the settlement agreement, (ii) provides, in customary form, for the unconditional release of the Indemnified Party from all liabilities and obligations in connection with such Action, (iii) does not involve any statement, finding or admission of any fault of, breach of contract by, or violation of Law by, the Indemnified Party; (iv) includes a reasonable confidentiality obligation by the third party claimant of the terms of the settlement in any settlement agreement; and (v) the Indemnified Party is prejudiced by an express third party beneficiary of the settlement agreement, entitled to enforce such failuresettlement agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Fox Factory Holding Corp)
Procedures. (a) An Indemnified Party (as defined in Section 17.3(b)) shall promptly give the Indemnifying Party (as defined in Section 17.3(b) notice of any matter (other than any third party claim, suit or action) upon determining that such matter has or may give rise to any right of indemnification pursuant to Article XVII hereof; provided that the failure by the Indemnified Party to give prompt notice of any such matter shall not limit the liability of the Indemnifying Party hereunder, except that this provision shall not be deemed to limit the Indemnifying Party’s rights to recover from the Indemnified Party to the extent of any loss, cost or expense which it can establish resulted directly from such failure to give prompt notice.
(b) In order for case any third party claim is made, or any third party suit or action is commenced, against a Purchaser Indemnitee or Company Indemnitee Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against ), the Indemnified Party (a “Third shall promptly give the other Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by notice thereof upon making a determination that such Indemnified Party third party claim, suit or action may give rise to a right of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release indemnification under Article XVII hereof and the Indemnifying Party from any of its obligations under this Article 10 except shall be entitled to participate in the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubtdefense thereof and, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon with prior written notice to the Indemnified Party within 30 given not later than twenty (20) days after the delivery of receipt of the applicable notice from the Indemnified Party, to assume, at the Indemnifying Party’s expense, the defense thereof, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Indemnifying Party to such Indemnified Party of the commencement of such Third Party Claim, its election so to assume the defense thereof at the expense of thereof, the Indemnifying Party shall not be liable to such Indemnified Party under this Section for any attorneys’ fees or other expenses subsequently incurred by such Indemnified Party in connection with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense thereof, other than reasonable costs of such Third Party Claim, the investigation.
(c) The Indemnified Party shall have the right to employ separate its own counsel and if the Indemnifying Party elects to participate in the defense thereofassume such defense, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If ’s expense, unless (i) the employment of such counsel has been authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party assumes has not employed counsel to take charge of the defense within twenty (20) days after delivery of any Third Party Claimthe applicable notice or, having elected to assume such defense, thereafter ceases its defense of such action, or (iii) the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make has reasonably concluded that there may be defenses available to it which are different from or additional to those available to the Indemnifying Party all witnesses, pertinent records, materials and information (in which case the Indemnifying Party shall not have the right to direct the defense of such action on behalf of the Indemnified Party’s possession or under ), in any of which events the attorneys’ fees and expenses of counsel to the Indemnified Party’s control relating thereto as is reasonably required Party shall be borne by the Indemnifying Party. If .
(d) The Indemnifying Party shall promptly notify the Indemnified Party if the Indemnifying Party assumes desires not to assume, or participate in the defense of, any such third party claim, suit or action.
(e) The Indemnified Party or Indemnifying Party may at any time notify the other of its intention to settle or compromise any Third Party Claimthird party claim, suit or action against the Indemnified Party shall agree to any settlementin respect of which payments may be sought by the Indemnified Party hereunder, compromise or discharge of such Third Party Claim that and (i) the Indemnifying Party may recommend and that by its terms obligates settle or compromise any such claim, suit or action solely for the Indemnifying Party to pay the full amount payment of the liability in connection with such Third Party Claim, and money damages for which releases the Indemnified Party completely in connection with such Third will be fully indemnified hereunder, but shall not agree to any other settlement or compromise without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld (it being agreed that any failure of an Indemnified Party Claim. Whether to consent to any settlement or compromise involving relief other than monetary damages shall not the Indemnifying Party assumes the defense of a Third Party Claimbe deemed to be unreasonably withheld), and (ii) the Indemnified Party may settle or compromise any such third party claim, suit or action solely for an amount not exceeding one thousand dollars ($1,000), but shall not admit settle or compromise any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim other matter without the prior written consent of the Indemnifying Party’s prior written consent (, which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Procedures. If any demands or claims are asserted against a Person entitled to indemnification under Section 9.2 or Section 9.2(f) (a) In order for a Purchaser Indemnitee or Company Indemnitee (the an “Indemnified Party”) to be entitled to or any indemnification provided for under this Agreement as actions, suits, or proceedings are commenced against an Indemnified Party by a result Person not a Party or an Affiliate of a Indemnified Liability or Party for which a claim or demand made by any Person against Party (the “Indemnifying Party”) is obligated to indemnify such Indemnified Party (a “Third Party Claim”), such the Indemnified Party shall deliver will give prompt notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except in order to the extent that the permit Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, necessary time to evaluate the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement merits of such Third Party Claim, but the failure of an Indemnified Party to give prompt notice to the Indemnifying Party shall not affect the rights of the Indemnified Party to indemnification hereunder, except to the extent any such failure materially prejudices the rights of the Indemnifying Party. The Indemnifying Party will have the right, but not the obligation, to assume the defense thereof of any such claim at the its own expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If Party so long as the Indemnifying Party assumes acknowledges in writing that the Indemnified Party is entitled to indemnification hereunder in respect of the Losses subject to such Third Party Claim and so long as the Indemnifying Party notifies the Indemnified Party in writing that it is assuming the defense of such Third Party Claimclaim within 20 days after receipt of notice of the claim from Indemnified Party, the Indemnified Party shall have the right to employ separate counsel be informed and consulted with respect to the negotiation, settlement or defense of such Third Party Claim and to participate in the defense thereofretain counsel to act on its behalf, but the fees and expenses disbursements of such counsel shall be at the expense of paid by the Indemnified Party; provided that if the Indemnifying Party assumes control of such defense and (i) the Indemnified Party reasonably concludes that the Indemnifying Party and the Indemnified Party may have a conflict of interest or different defenses available with respect to such Proceeding that would make it inappropriate for the same counsel to represent both parties or (ii) the Indemnifying Party has not in fact employed counsel to assume control of such defense, the reasonable fees and expenses of counsel to the Indemnified Party (limited to one law firm in each applicable jurisdiction) shall be paid for by the Indemnifying Party. If The party controlling such defense shall keep the other party advised of the status of such Proceeding and the defense thereof. Notwithstanding anything to the contrary herein, Buyer as Indemnified Party shall have the full right to control the defense and settlement of any Third Party Claim if: (1) the claim seeks anything other than monetary damages, including an injunction or other equitable relief; (2) the claim involves a claim by any Governmental Authority or a significant customer, supplier, dealer, distributor, sales representative or other business partner of the Cobalt Companies, or involves a criminal claim; (3) the amount reasonably necessary to conclude the defense of such Third Party Claim is in excess of (or reasonably likely to exceed) the remaining portion of the liability cap under Section 9.2(b) applicable to such claim after reduction of all Losses previously recovered by (or then being claimed pursuant to unresolved claims) by the Buyer Parties that count (or would count) towards such cap (if a cap is applicable to such claim); or (4) the Indemnifying Party assumes the defense of any Third Party Claim, but fails to promptly defend the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether Assumption by Buyer of control of any such defense or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent settlement shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have deemed a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any waiver by it of its obligations under this Article 10 except right to the extent that the Indemnifying Party is prejudiced by such failure.indemnification hereunder. 58
Appears in 1 contract
Sources: Unit Purchase Agreement
Procedures. A. In the event that any Legal Proceeding shall be threatened or instituted in respect to which indemnification may be sought by one party hereto from another party under the provisions of this Article 6, the party seeking indemnification (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified PartyIndemnitee”) shall, reasonably promptly after acquiring actual knowledge of such threatened or instituted Legal Proceeding, cause written notice in reasonable detail of such threatened or instituted Legal Proceeding covered by this indemnification, to be entitled forwarded to any the other party from which indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party is being sought (a “Third Party ClaimIndemnitor”); provided, such Indemnified Party shall deliver notice thereof to however, that the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticenotice as of any particular date as aforesaid will not affect any rights to indemnification hereunder, except to the extent, and only to such extent, that such failure to provide such notice actually and materially prejudices the Indemnitor’s ability to adequately defend such Legal Proceeding. In the case of any Loss not involving a Legal Proceeding, the Indemnitee shall, reasonably promptly after acquiring actual knowledge of such Loss, cause written notice in reasonable detail of such Loss covered by this indemnification, to be forwarded to the Indemnitor; provided, however, that the failure to provide such notice as of any particular date as aforesaid will not affect any rights to indemnification hereunder.
B. In the event of the initiation of any Legal Proceeding against an Indemnitee by a third party, the Indemnitor shall not release have the Indemnifying Party from any absolute right after the receipt of the notice described in Section 6.4(A), at its option and at its own expense, to be represented by counsel of its obligations under this Article choice, and (subject to Section 6.4(C)) to defend against, negotiate, settle or otherwise deal with any Legal Proceeding or demand that relates to any Purchaser’s Losses or Seller’s Losses, as the case may be, indemnified against hereunder, and, in such event, the Indemnitee will reasonably cooperate with the Indemnitor and its representatives in connection with such defense, negotiation, settlement or dealings (and the Indemnitee’s costs and expenses arising therefrom or relating thereto shall constitute Purchaser’s Losses, if the Indemnitee is the Purchaser, or Seller’s Losses, if the Indemnitee is the Seller); provided, however, that the Indemnitee may directly participate in any such Legal Proceeding so defended with counsel of its choice at its own expense. However, if the Indemnitor fails to take reasonable steps necessary to defend diligently such third party claim within 10 except Business Days after receiving written notice from the Indemnitee that the Indemnitee reasonably believes the Indemnitor has failed to take such steps or if the Indemnitor has not undertaken fully to indemnify the Indemnitee in respect of all such Purchaser’s or Seller’s Losses, as the case may be, relating to the matter and as and to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubtrequired hereunder, the Indemnitee may assume its own defense, and, in such event (a) the Indemnitor will be liable for all Purchaser’s or Seller’s Losses, as the case may be, reasonably paid or incurred in connection therewith, and (b) the Indemnitor shall, in any case, reasonably cooperate, at its own expense, with the Indemnitee and its representatives in connection with such defense.
C. Without the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed, the Indemnitor will not enter into any settlement of any third party claim which would lead to liability or create any financial or other obligation on the part of the Indemnitee for which the Indemnitee is not entitled to indemnification provisions hereunder or which would otherwise adversely affect the Indemnitee, the Assets or the Business.
D. An Indemnitee shall use commercially reasonable efforts to pursue and procedures contained collect any amounts payable under insurance policies on account of Purchaser’s Losses (if the Indemnitee is the Purchaser) or Seller’s Losses (if the Indemnitee is the Seller), but only if doing so will not result in (a) a material increase in premiums due then or in the future to procure comparable insurance or an increase in deductibles; or (b) a decrease in the levels of insurance or a change in the risks insured against; or (c) prejudice to the Indemnitee’s claims or rights to indemnification hereunder.
E. After any final judgment or award shall have been rendered by a Governmental Entity of competent jurisdiction, or a settlement shall have been consummated, or the Indemnitee and the Indemnitor shall have arrived at a mutual agreement with respect to each separate matter alleged to be indemnified by the Indemnitor hereunder, the Indemnitee shall forward to the Indemnitor notice of any sums due and owing by it with respect to such matter, and the Indemnitor shall pay all of the sums so owing to the Indemnitee by wire transfer or certified or bank cashier’s check within 10 Business Days after the date of such notice. Subject to the limitations set forth in this Article 10 shall apply only to breaches VI, any and all Purchaser’s Losses or Seller’s Losses, other than those described in the preceding sentence (including Purchaser’s Losses or Seller’s Losses incurred in the absence of representationsany threatened or pending Legal Proceeding, warranties and covenants under this Agreement and shall not apply to or Purchaser’s Losses or Seller’s Losses incurred after any other agreement such Legal Proceeding has been threatened or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice instituted but prior to the Indemnified Party within 30 days rendering of receipt of notice from any final judgment or award in connection therewith), shall be paid by the Indemnified Party Indemnitor on a current basis, and, without limiting the generality of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claimforegoing, the Indemnified Party Indemnitee shall have the right to employ separate counsel invoice the Indemnitor for such Purchaser’s Losses or Seller’s Losses, as the case may be, as frequently as it deems appropriate, and the amount of any such Purchaser’s Losses or Seller’s Losses, as the case may be, which are described or listed in any such invoice shall be paid to participate in the defense thereofIndemnitee, but by wire transfer or certified or bank cashier’s check, within 10 Business Days after the fees and expenses date of such counsel invoice. Notwithstanding the foregoing, the Purchaser’s claims for indemnification pursuant to this Article VI shall be at satisfied first from the expense Holdback Amount, second from any other amounts that may be owing from the Purchaser to the Seller under Section 2.2(c), (d) or (e), and then, to the extent those funds are insufficient to pay all such claims, directly by the Seller pursuant to this Section 6.4.
F. To the maximum extent permitted by law, it is the intention of the Indemnified Party. If parties to treat any indemnity payment made under this Agreement as an adjustment to the Indemnifying Party assumes the defense purchase price.
G. The amount of any Third Party ClaimLosses with respect to any indemnification claim hereunder shall be determined net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnitee with respect to such claim (such proceeds or payment to be paid over to the Indemnitor up to the amount paid by the Indemnitor if received after payment of the indemnification claim by the Indemnitor).
H. The parties agree that they shall use commercially reasonable efforts to mitigate any Losses that may give rise to claims for indemnification under this Article VI.
I. Upon payment of any amount pursuant to this Article VI, the Indemnified Party Indemnitor shall cooperate with the Indemnifying Party in such defense and make available be subrogated, to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge extent of such Third Party Claim that payment, to all of the Indemnifying Party may recommend and that by its terms obligates Indemnitee’s rights of recovery against any third party with respect to the Indemnifying Party matters to pay which such indemnification claim relates. The Indemnitor shall not, however, have the full right to collect aggregate payments from such third party or third parties in excess of the actual amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability indemnification payment previously paid by Indemnitor with respect to, to such Losses.
J. The Indemnitee agrees that it will not waive any statute of limitations or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim defense that would increase the liability of the Indemnitor without the Indemnifying Party’s prior written consent (of the Indemnitor, which consent shall not be unreasonably withheld), conditioned or delayed.
(c) In K. This Article VI shall survive the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party Closing and shall deliver notice of such claim thereafter remain in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failurefull force and effect.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee If any Person who or Company Indemnitee (the “Indemnified Party”) to be which is entitled to seek indemnification under SECTION 9.2 (an "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Third-Party Claim against such Indemnified Party with respect to which the Person against whom or which such indemnification provided for is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against Agreement, the Indemnified Party (a “Third will give such Indemnifying Party Claim”)reasonably prompt written notice thereof, such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly but in any event not later than 30 days after receipt by of such Indemnified Party of written notice of such Third-Party Claim. Such notice by the Third Indemnified Party will describe the Third-Party Claim in accordance with Section 10.6reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably estimable, of the Damages that have been or may be sustained by the Indemnified Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except will have the right to participate in, or, by giving written notice to the extent that Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party is prejudiced Party's own expense and by such failure. For Indemnifying Party's own counsel (which will be reasonably satisfactory to the avoidance of doubtIndemnified Party), the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyIndemnified Party will cooperate in good faith in such defense.
(b) The If, within 30 days after giving notice of a Third-Party Claim to an Indemnifying Party pursuant to SECTION 9.3(a), an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of SECTION 9.3(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within twenty days after receiving written notice from the Indemnified Party, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith (if the Indemnifying Party is obligated to provide indemnification under this Agreement with respect to the underlying Third-Party Claim); PROVIDED, HOWEVER, that the Indemnifying Party shall have not be liable for the rightcosts and expenses of more than one counsel for all Indemnified Parties in any one jurisdiction. Without the prior written consent of the Indemnified Party, upon the Indemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party within 30 days of receipt of notice from to that effect. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third-Party Claim and, in such event, the maximum liability of the commencement Indemnifying Party as to such Third-Party Claim will not exceed the amount of such Third settlement offer. The Indemnified Party Claimwill provide the Indemnifying Party with reasonable access during normal business hours to books, records and employees of the Indemnified Party necessary or desirable in connection with the Indemnifying Party's defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder. If the Sellers elect to assume the defense thereof at as Indemnifying Parties of a Third-Party Claim, then the expense Sellers shall be entitle to pay the applicable defense costs out of the Escrow Amount, or if they pay such costs then to be reimbursed for such costs, and the Buyer shall execute with Sellers such direction to the Escrow Agent to effect such result.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party with counsel selected reasonably prompt written notice thereof. Such notice by the Indemnifying Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably satisfactory to practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of 30 days within which to respond in writing to such Direct Claim. If the Indemnifying Party assumes does not so respond within such 30 day period, the defense of Indemnifying Party will be deemed to have rejected such Third Party Claimclaim, in which event the Indemnified Party shall have the right will be free to employ separate counsel and pursue such remedies as may be available to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with on the Indemnifying Party in such defense terms and make available subject to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense provisions of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)this Agreement.
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The A failure to provide such noticegive timely notice or to include any specified information in any notice as provided in SECTION 9.3(a), however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except 9.3(b) or 9.3(c) (in contrast to the extent that the Indemnifying Party is prejudiced by such failure.notice deadlines in SECTION 9.1 and SECTION
Appears in 1 contract
Sources: Stock Purchase Agreement (Pacific Energy Resources LTD)
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the “Indemnified PartyParty7.4(a)" ”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person a Third Party against the Indemnified Party (a “Third Party ClaimClaim7.4(a)" ”), such Indemnified Party shall deliver notice thereof to the party Party against whom indemnity is sought (the “Indemnifying PartyParty7.4(a)" ”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim Claim, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 7 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Subject to Sections 5.2 and 5.3, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settlecompromise, compromise settle or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent unless the Indemnifying Party withdraws from the defense of such Third Party Claim or unless a final non-appealable judgment of a court of competent jurisdiction from which no appeal may be taken by or on behalf of the Indemnifying Party is entered against the Indemnified Party for such Third Party Claim. If the Indemnified Party assumes the defense of any such claims or proceeding pursuant to this Section 7.4 and proposes to settle such claims or proceeding prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in the conduct of the settlement and/or to preclude such action by the Indemnified Party and assume or reassume the defense of such claims or proceeding. If a firm written offer is made to settle any Third Party Claim, the Indemnifying Party proposes to accept such settlement and the Indemnified Party refuses to consent to such settlement, then: (which consent i) the Indemnifying Party shall not be unreasonably withheld)excused from, and the Indemnified Party shall be solely responsible for, all further defense of such Third Party Claim and all of the costs and expenses associated therewith and (ii) the maximum obligation of the Indemnifying Party to indemnify the Indemnified Party relating to such Third Party Claim shall be the amount of the proposed settlement if the amount thereafter recovered from the Indemnified Party on such Third Party Claim is greater than the amount of the proposed settlement.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 7 except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnifying Party shall have 30 days after receipt of notice of any claim pursuant to this Section 7.4(c) to (i) agree to the amount or method of determination set forth in such claim and to pay such amount to such Indemnified Party or (ii) provide the Indemnified Party with notice (a “Dispute Notice7.4(c)" ”) that it disagrees with the amount or method of determination set forth in such claim. If the Indemnifying Party has timely delivered a Dispute Notice, the Indemnifying Party and the Indemnified Party shall, during a period 30 days from the Indemnified Party’s receipt of such Dispute Notice, negotiate in good faith to achieve of resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
(d) Notwithstanding the foregoing, if a Third Party Claim includes or could reasonably be expected to include both a claim for Taxes that are Excluded Taxes and a claim for Taxes that are Assumed Liabilities, and such claim for Taxes that are Excluded Taxes is not separable from such a claim for Taxes that are Assumed Liabilities, Sellers (if the claim for Taxes that are Excluded Taxes exceeds or reasonably could be expected to exceed in amount the claim for Taxes that are Assumed Liabilities) or otherwise Buyer (Sellers or Buyer, as the case may be, the “Tax Controlling Party7.4(d)" ”), shall be entitled to control the defense of such Third Party Claim (such Third Party Claim, a “Tax Claim7.4(d)" ”). In such case, the other party (the “Tax Non-Controlling Party7.4(d)" ”) shall be entitled to participate fully (at the Tax Non-Controlling Party’s sole cost and expense) in the conduct of such Tax Claim and the Tax Controlling Party shall not settle such Tax Claim without the consent of such Tax Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Tax Claim shall be reasonably apportioned based on the relative amounts of the claim for Taxes that are Excluded Taxes and the claim for Taxes that are Assumed Liabilities. Notwithstanding any other provision, Buyer shall be entitled to control in all respects any proceedings relating to Taxes based on or related to income of Buyer or any of its Affiliates and, except as provided above in this Section 7.4(d), all other proceedings relating to Taxes of Buyer or any of its Affiliates.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Acceptance Corp /De/)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such An Indemnified Party shall deliver give the Indemnifying Party notice thereof of any matter which an Indemnified Party has determined has given rise to a right of indemnification under this Agreement, within sixty (60) days of such determination, stating the amount of the Loss, if known, and containing a reference to the party against whom indemnity provisions of this Agreement in respect of which such right of indemnification is sought (claimed or arises; provided that the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement failure and shall not apply to relieve the Indemnifying Party from any other agreement obligation or instrument entered into between Purchaser and liability that it may have to the CompanyIndemnified Party or otherwise than pursuant to this Article VIII.
(b) If an Indemnified Party shall receive notice of any claim, demand, action or proceeding made by any Person who is not a Party or an Affiliate of a Party (each, a “Third Party Claim”) against it which may give rise to a claim for Losses under this Article VIII, within sixty (60) days of the receipt of such notice, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. The Indemnifying Party shall have be entitled, at its option, to assume and control the right, upon written defense of such Third Party Claim at its expense and through counsel reasonably satisfactory to the Indemnified Party if it gives notice of its intention to do so to the Indemnified Party within 30 thirty (30) days of the receipt of such notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes elects to undertake any such defense against a Third Party Claim the Indemnified Party may, upon giving prior written notice to the Indemnifying Party, participate in such defense at its own expense. Notwithstanding the foregoing, if (i) the claim for indemnification is with respect to a criminal action, proceeding, indictment, allegation or investigation against the Indemnified Party, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party and the Indemnified Party, (iii) the Indemnifying Party has failed or is failing to vigorously prosecute or defend such claim; (iv) the claim seeks an injunction or other equitable relief against the Indemnified Party or (v) the applicable Third Party Claim is with respect to Taxes (which shall be governed by Article IX), then (A) the Indemnifying Party shall not be entitled to assume the defense of any such Third Party Claim, claim or action and (B) the Indemnified Party shall have the right to employ separate counsel conduct and to participate in control the defense thereof, but the fees and expenses of such action or claim with counsel shall be at the expense of the Indemnified Party. If reasonably acceptable to the Indemnifying Party assumes and the defense of any Third Party Claim, legal and other reasonable and documented expenses incurred by the Indemnified Party shall be borne by the Indemnifying Party. The Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of not settle such Third Party Claim that unless the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party consents in writing (such consent not to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claimbe unreasonably withheld or delayed). Whether or not If the Indemnifying Party assumes the defense of a any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party shall not admit (which may be withheld in the Indemnified Party’s sole discretion), enter into any liability settlement or compromise or consent to the entry of any judgment with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without if such settlement, compromise or judgment (w) involves a finding or admission of wrongdoing by the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against or any of its Affiliates, (x) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party and its Affiliates from all liability in respect of such Third Party Claim, (y) imposes equitable remedies or any obligation on the Indemnified Party or any of its Affiliates other than solely the payment of money damages for which the Indemnified Party will be fully indemnified by the Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party(z) would materially interfere with or materially adversely affect the business, reputation, operations or assets of the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from or any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureAffiliates.
Appears in 1 contract
Sources: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Procedures. (a) In order for If a Purchaser Indemnitee or Company Indemnitee party hereto seeks indemnification under this Article VIII, such party (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give written notice thereof to the other party against whom indemnity is sought (the “"Indemnifying Party”") promptly within five (5) days after receipt by such Indemnified Party of receiving written notice of any action, lawsuit, proceeding, investigation, or other claim against it (if by a third party) or discovering the Third Party Claim in accordance with Section 10.6. The liability, obligation, or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that the failure to provide such notice, however, shall not release so notify the Indemnifying Party from any shall not relieve the Indemnifying Party of its obligations under this Article 10 hereunder except to the extent such failure shall have prejudiced the Indemnifying Party. In that regard, if any action, lawsuit, proceeding, investigation, or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnified Party to indemnity pursuant to this Article VIII, the Indemnified Party shall, within five (5) days, notify the Indemnifying Party of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto and the Indemnifying Party shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation, or other claim giving rise to the Indemnified Party's claim for indemnification at the Indemnifying Party's expense and option (subject to the limitations set forth below) shall be entitled to control and appoint lead counsel of such defense with reputable counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying Party's right to assume control of such defense, it must first acknowledge in writing its obligation to indemnify the Indemnified Party hereunder against any Losses that may result from such claim; and provided further that the Indemnifying Party is prejudiced by shall not have the right to assume control of such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement defense and shall not apply pay the fees and expenses of reputable counsel reasonably acceptable to any other agreement or instrument entered into between Purchaser and the Company.Indemnifying Party retained by the Indemnified Party, if the claim which the Indemnifying Party seeks to assume control (each, an "Indemnified Party Controlled Proceeding")
(bi) The involves a claim which the Indemnified Party reasonably believes could be detrimental to or injure the Indemnified Party's reputation, customer or supplier relations or future business prospects, (ii) seeks non-monetary relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages), (iii) involves criminal allegations, (iv) is one in which the Indemnifying Party shall have the right, upon written notice is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party within 30 days of receipt of notice which are different from or additional to those available to the Indemnifying Party, or (v) involves a claim which, upon petition by the Indemnified Party of Party, the commencement of such Third Party Claim, to assume the defense thereof at the expense of appropriate court rules that the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory failed or is failing to the Indemnified Partyvigorously prosecute or defend. If the Indemnifying Party assumes is permitted to assume and control the defense of such Third Party Claimand elects to do so, the Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party that are incurred after the Indemnifying Party's assumption and control of the defense shall be at the expense of the Indemnified PartyParty unless the employment thereof has been specifically authorized by the Indemnifying Party in writing. If the Indemnifying Party assumes shall control the defense of any Third such claim, the Indemnifying Party Claim, shall obtain the prior written consent of the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c, conditioned or delayed) In the event before entering into any Indemnified Party should have settlement of a claim or ceasing to defend such claim, if pursuant to or as a result of such settlement or cessation, injunction, or other equitable relief will be imposed against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of or if such claim in accordance with Section 10.6. The failure to provide such notice, however, shall settlement does not expressly unconditionally release the Indemnifying Indemnified Party from any of its all liabilities and obligations under this Article 10 except with respect to the extent that the Indemnifying Party is prejudiced by such failureclaim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Otis Spunkmeyer Holdings Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The party seeking indemnification (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to give the party against from whom indemnity indemnification is sought (the “"Indemnifying Party”") promptly after receipt by such Indemnified Party of written notice of any claim, demand, assessment, action, suit or proceeding to which the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained indemnity set forth in this Article 10 shall apply only to breaches of representationsAgreement applies. If the document evidencing such claim or demand is a court pleading, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party shall give such notice within 10 days of receipt of such pleading, and otherwise shall give such notice within 30 days of receipt the date it receives written notice of such claim. If the Indemnified Party's request for indemnification arises from the claim of a third party, the written notice shall permit the Indemnifying Party to assume the control of any such claim, or any litigation resulting from such claim. Failure by the Indemnifying Party to notify the Indemnified Party of the commencement its election to defend a complaint by a third party within 5 days of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected notice shall be a waiver by the Indemnifying Party and reasonably satisfactory of its right to the Indemnified Party. If respond to such complaint and, within 20 days after notice thereof, shall be a waiver by the Indemnifying Party assumes of its right to assume control of the defense of such Third Party Claimaction. Notwithstanding the Indemnifying Party's assumption of the defense of such third-party claim or demand, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel third-party claim or demand at its own expense. The Indemnified Party shall be at the expense of the Indemnified Party. If furnish the Indemnifying Party assumes the defense of any Third Party ClaimParty, in reasonable detail, all information the Indemnified Party may have with respect to any such third-party claim and shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party and its representatives all witnesses, pertinent records, records and other similar materials and information which are reasonably required in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by defense of such third-party claim and shall otherwise cooperate with and assist the Indemnifying PartyParty in the defense of such third-party claim. If the Indemnifying Party assumes does not assume control of the defense of any Third Party Claimsuch third-party claim or litigation resulting therefrom, the Indemnified Party shall agree to may defend against such claim or litigation in such manner as it may reasonably deem appropriate. Notwithstanding any settlementother provision of this Agreement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claim▇▇. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party ▇▇▇▇▇▇▇ shall not admit any liability with respect to, or settle, compromise or dischargeotherwise dispose of any claim, demand, assessment, action, suit or offer proceeding relating to any breach of any representation or warranty contained in section 3.14 hereof without the prior written consent of UWSI (which consent shall not be unreasonably withheld). Additionally notwithstanding any other provision of this Agreement, UWSI shall not settle, compromise or dischargeotherwise dispose of any claim, such Third Party Claim demand, assessment, action, suit or proceeding relating to any breach of any representation or warranty contained in section 3.14 hereof without the Indemnifying Party’s prior written consent of ▇▇. ▇▇▇▇▇▇▇ (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Acquisition Agreement (United Wisconsin Services Inc /Wi)
Procedures. Promptly after receipt by a Person entitled to ---------- indemnification under subsection (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “b) (an "Indemnified Party”") to be entitled to of notice --------------------- of any indemnification provided for under this Agreement as a result of a Indemnified Liability pending or a threatened claim or demand made by any Person against the Indemnified Party it (a “Third Party "Claim”"), such Indemnified Party shall deliver give prompt written notice thereof (including copies of all papers served with respect to such claim) to the party against to whom indemnity the Indemnified Party is sought entitled to look for indemnification (the “"Indemnifying Party”") promptly after receipt by such of the commencement thereof, which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of damages attributable to the Third Party Claim to the extent feasible and the basis of the Indemnified Party's request for indemnification under this Agreement; provided that the failure to so notify the Indemnifying Party shall not relieve -------- the Indemnifying Party of any liability that it may have to any Indemnified Party except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Claim that is subject to indemnification under subsection (a) shall be brought against an Indemnified Party and it shall give -------------- notice to the Indemnifying Party of written notice the commencement thereof, the Indemnifying Party may, and at the request of the Indemnified Party shall, participate in and control the defense of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any counsel of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the Person asserting the Third Party Claim or any cross-complaint against any Person, in each case only if and to the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement of any claim, litigation or proceeding in respect of which indemnity may be sought hereunder, provided that the Indemnifying Party will give the Indemnified Party reasonable -------- prior written notice of any such proposed settlement or compromise and will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. The Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such cooperation. If the Indemnifying Party fails to assume the defense of a Third Party Claim within a reasonable period after receipt of written notice pursuant to the first sentence of this subparagraph (c), or if the Indemnifying Party assumes the defense of any the Indemnified Party pursuant to this subparagraph (c) but fails diligently to prosecute or settle the Third Party Claim, then the Indemnified Party shall cooperate with have the right to defend, at the sole cost and expense of the Indemnifying Party in (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim proceedings; provided 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, -------- settle such Third Party Claim without the written consent of the Indemnifying Party’s prior written consent (, which consent shall not be unreasonably withheld).
(c) In . The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the event any Indemnified Party should have a claim against any pursuant to this Section, and the Indemnifying Party hereunder that does shall bear its own costs and expenses with respect to such participation. Notwithstanding the other provisions of this Section 13.2, if the ------------ Indemnifying Party disputes its potential liability to the Indemnified Party under this Section 13.2 and if such dispute is resolved in favor of the ------------ Indemnifying Party, the Indemnifying Party shall not involve a Third Party Claim being asserted against or sought be required to be collected from such bear the costs and expenses of the Indemnified Party's defense pursuant to this Section ------- 13.2 or of the Indemnifying Party's participation therein at the Indemnified ---- Party's request, and the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release reimburse the Indemnifying Party from any in full for all costs and expenses of its obligations the litigation concerning such dispute. If a dispute over potential liability is resolved in favor of the Indemnified Party the Indemnifying Party shall reimburse the Indemnified Party in full for all costs of the litigation concerning such dispute. After it has been determined, by acknowledgment, agreement, or ruling of court of Legal Requirements, that an Indemnifying Party is liable to the Indemnified Party under this Article 10 except Section 13.2(c), the Indemnifying Party shall pay --------------- or cause to be paid to the Indemnified Party the amount of the Liability within ten business days of receipt by the Indemnifying Party of a notice reasonably itemizing the amount of the Liability but only to the extent that actually paid or suffered by the Indemnifying Party is prejudiced by such failureIndemnified Party.
Appears in 1 contract
Sources: Limited Partnership Agreement (Equistar Funding Corp)
Procedures. (a) In order for a Purchaser Indemnitee A party that is entitled to indemnification under Section 8.2 or Company Indemnitee (8.3 is referred to herein as the “Indemnified Party” and a party that is obligated to provide indemnification under Section 8.2 or 8.3 is referred to herein as the “Indemnifying Party”) . In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss by or a claim or demand made by any Person (including a Governmental Authority) against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party Indemnifying Party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will not have the right to assume or continue control of such defense if the claim (1) seeks non-monetary relief, (2) involves criminal allegations, or (3) involves a claim which, upon reasonable determination by the Indemnified Party, the Indemnifying Party failed or is failing to diligently prosecute or defend. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b) or is barred from assuming or continuing such defense by this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have been advised by such counsel that there are one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in each such case, the fees and expenses of such counsel shall be at the expense of the Indemnifying Party). If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party shall agree (such consent not to be unreasonably withheld, conditioned or delayed), enter into any settlement, settlement or compromise or discharge consent to the entry of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party any judgment with respect to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely .
(c) The indemnification required hereunder in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense respect of a Third Party ClaimClaim shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith, as and when bills are received by the Indemnified Indemnifying Party or Losses incurred have been notified to the Indemnifying Party.
(d) The Indemnifying Party shall not admit be entitled to require that any liability with respect to, Action be made or settle, compromise brought against any other Person before Action is brought or discharge, or offer to settle, compromise or discharge, such Third Party Claim without claim is made against it hereunder by the Indemnifying Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld).
(ce) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 10 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(f) Notwithstanding the provisions of Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Micro Circuits Corp)
Procedures. (a) In order for Any claim under Section 9.2 or Section 9.3 shall be made in a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made ----------- ----------- written statement signed by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (seeking indemnification which shall specify in reasonable detail each individual item of Damage and the “Indemnifying Party”) promptly after receipt by estimated amount thereof, the date such Indemnified Party of written notice item was claimed or the facts giving rise to such claim were discovered, the basis for any alleged liability and the nature of the Third Party Claim in accordance with Section 10.6. The failure breach or claim to provide which each such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party item is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyrelated.
(b) If the indemnifying party does not pay the amount specified in any such statement within thirty (30) days after it has been delivered by the party seeking indemnification, the party seeking indemnification may enforce its right in accordance with law.
(c) The Indemnifying Party party seeking indemnification in respect of any third party claim shall give the indemnifying party prompt notice of any Proceeding which might give rise to liability of the indemnifying party for indemnification hereunder; provided, that failure to give the indemnifying party prompt notice will not relieve such indemnifying party of any liability to the indemnified party hereunder, except to the extent the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party's failure to give such notice. If the indemnifying party wishes to contest any third party claim, it will have the option to defend, at the indemnifying party's expense, any such matter, provided that the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimat its own cost and expense, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at claim or, if the expense of indemnifying party elects not to defend the Indemnified Partyclaim, to conduct the defense on its own behalf. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes indemnifying party conducts the defense of a Third Party Claimclaim, neither party (or in the case of the Company or the Subsidiary, that entity itself) will enter into any settlement agreement without the other party's consent; provided, that the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) shall not object to any proposed settlement which requires only the payment of money by the indemnifying party and does not involve any admissions or stipulations by the indemnified party, the Indemnified Party shall not admit any liability with respect toCompany, the Subsidiary, or settlethe Schools or any injunctive or similar relief or any other contractual obligations affecting the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) or their respective business and operations. The indemnified party shall cooperate (and the Purchaser shall cause the Company and the Subsidiary to cooperate) with the indemnifying party in the defense, compromise or dischargesettlement of any claim for which indemnification is sought. If the indemnifying party elects not to conduct the defense of such claim, the indemnified party (or in the case of the Company or the Subsidiary, that entity itself) shall be permitted to settle or compromise any such claim on such terms as it deems appropriate and such settlement or compromise shall not prejudice the rights to indemnification hereunder.
(d) Notwithstanding Section 9.7(c), if an indemnified party --------------- determines in good faith that there is a reasonable probability that a Proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying party, assume the exclusive right to defend, compromise, or offer to settlesettle such Proceeding, but the indemnifying party will not be bound by any determination of a Proceeding so defended or any compromise or discharge, such Third Party Claim settlement effected without the Indemnifying Party’s prior written its consent (which consent shall may not be unreasonably withheld).
(ce) In the event A claim for indemnification for any Indemnified Party should have matter not involving a third- party claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being may be asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver by notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party party from whom indemnification is prejudiced by such failuresought.
Appears in 1 contract
Procedures. The Party seeking to be indemnified pursuant to this Section 12 (a) In order for a Purchaser Indemnitee or Company Indemnitee (as applicable, the “Indemnified Party”) to shall be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party hereunder only: (a “Third Party Claim”), such Indemnified Party shall deliver i) if it gives written notice thereof to the party against whom indemnity is sought Party obligated to provide such indemnification hereunder (the “Indemnifying Party”) promptly of any losses or claims, suits, or proceedings by Third Parties which may give rise to a claim for indemnification with reasonable promptness after receipt by such Indemnified Party of receiving written notice of such claim (or, in the Third Party Claim case of a proceeding, is served in accordance with Section 10.6. The failure to provide such noticeproceeding) or becoming aware of any such loss; provided, however, that failure to give such notice shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 obligation to provide indemnification, except if and to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. For thereby, and (ii) once the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice confirms in writing to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, that it is prepared to assume the defense thereof at the expense of its indemnification obligations hereunder, the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes has sole control over the defense of such Third Party Claimthe claim, at its own cost and expense; provided, however, that the Indemnified Party shall have the right to employ separate be represented by its own counsel and at its own cost in such matters. Notwithstanding the foregoing, (x) no Indemnifying Party shall have the right to participate assume control over the assertion of any claim, or the commencement of any action, in the defense thereof, but the fees and expenses of such counsel shall be at the expense either case with respect to Taxes of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim provided 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit settle or resolve any liability with respect tosuch claim or action if doing so would reasonably be expected to adversely impact the Indemnifying Party, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without including increasing the Indemnifying Party’s obligations pursuant to this Agreement, without the prior written consent (of the Indemnifying Party, which consent shall not be unreasonably withheld).
, conditioned or delayed; and (cy) In the event Indemnifying Party shall not settle or dispose of any such matter in any manner which would require the Indemnified Party should have a claim against to make any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against admission, or sought to be collected from such take any action (except for ceasing use or distribution of the items subject to the claim) without the prior written consent of the Indemnified Party, the Indemnified which shall not be unreasonably withheld, conditioned or delayed. Each Party shall deliver notice reasonably cooperate with the other Party and its counsel in the course of the defense of any such claim in accordance with Section 10.6. The failure suit, claim, or demand, such cooperation to include using reasonable efforts to provide such noticeor make available documents, howeverinformation, shall not release the Indemnifying Party from any of its obligations under this Article 10 except and witnesses and to the extent that the Indemnifying Party is prejudiced by such failuremitigate damages.
Appears in 1 contract
Sources: Module Operational Support Agreement (FREYR Battery, Inc. /DE/)
Procedures. Claims for indemnification under this Agreement will be asserted and resolved as follows:
(a) In order for a Purchaser Indemnitee Any Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party seeking indemnification under this Agreement (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person asserted against the Indemnified Party by a third party (a “Third Party Claim”), such Indemnified ) in respect of any matter that is subject to indemnification under Section 11.2 or Section 11.3 will (i) promptly notify the other Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure and (ii) as promptly as practicable transmit to provide such notice, however, shall not release the Indemnifying Party from a written notice (a “Claim Notice”) describing in reasonable detail and with reasonable specificity the nature of the Third Party Claim, a copy of all material papers served with respect to such claim (if any), the basis of the Indemnified Party’s request for indemnification under this Agreement and an estimate of any Losses suffered with respect thereto (if reasonably determinable). Notwithstanding the foregoing, the delay or failure to give the notice provided in, or in accordance with, this Section 11.4(a) will not relieve the Indemnifying Party of its obligations under this Article 10 11, except to the extent that the such Indemnifying Party is actually prejudiced by such delay or failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall will have the right, upon written notice right to defend the Indemnified Party within 30 days against such Third Party Claim (except in the case of receipt of notice from an Excluded Matter) if the Indemnifying Party promptly notifies the Indemnified Party of (and in any event within twenty (20) days after having received any Claim Notice) that it is exercising its right to defend the commencement of Indemnified Party against such Third Party Claim, . If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense thereof at of the expense of Third Party Claim, then the Indemnifying Party will have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. If , in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party assumes in accordance with this Section 11.4(b). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnifying Party will not enter into any settlement agreement without the written consent of the Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent will not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim of all Indemnified Parties affected by the Third Party Claim, (ii) the settlement agreement does not contain any admission of fault or material sanction or restriction upon or otherwise materially adversely affect the conduct or operation of any business conducted by the Indemnified Party or its Affiliates, and (iii) the Indemnifying Party pays or causes to be paid in full all amounts arising out of such settlement. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.4(b), and the Indemnified Party will bear its own costs and expenses with respect to such participation unless, in the reasonable judgment of the Indemnified Party, there is a conflict of interest (including the availability to the Indemnified Party of one or more defenses that are not available to the Indemnifying Party) that would prevent the same counsel from representing both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain one separate counsel who shall have a right to reasonably participate in but not control the defense of such Third Party Claim, the reasonable costs and expenses of which will be borne by the Indemnifying Party. Notwithstanding the foregoing, if a Third Party Claim (A) seeks non- monetary relief which, if granted, could materially adversely affect the Indemnified Party or any of its Affiliates and that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be readily separated from any related claim for money damages (provided that, 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) or (B) involves a criminal proceeding (each, an “Excluded Matter”), then the Indemnified Party shall have the right to employ separate counsel defend and to participate in control the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. applicable Third Party Claim.
(c) If the Indemnifying Party assumes does not notify the defense Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.4(b) within twenty (20) days after receipt of any Claim Notice (or notifies the Indemnified Party within such time period that it elects not to defend the Indemnified Party) or thereafter fails to reasonably diligently conduct such defense, then the Indemnified Party shall have the right to defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party shall cooperate with the Indemnifying Party is actually entitled to indemnification hereunder) in such defense and make available regard to the Indemnifying Third Party all witnesses, pertinent records, materials and information in Claim with counsel reasonably selected by the Indemnified Party’s possession , in all appropriate proceedings. In such circumstances or under in the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense case of any Third Party Claiman Excluded Matter, the Indemnified Party shall agree to will defend any settlementsuch Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or discharge settlement of such Third Party Claim that if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.4(c) or in the case of an Excluded Matter, and the Indemnifying Party may recommend will bear its own costs and that expenses with respect to such participation.
(d) If requested by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes controlling the defense of a Third Party Claim, the other Party agrees, at the sole cost and expense of the controlling Party (provided that such cost and expense shall nonetheless be that of the Indemnifying Party if the Indemnified Party shall not admit is actually entitled to indemnification hereunder), to cooperate with the controlling Party and its counsel in contesting any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without that the Indemnifying controlling Party elects to contest, including providing reasonable access to documents, records and information. In addition, such other Party will make its personnel reasonably available at no cost to the controlling Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the controlling Party’s prior written consent (which consent shall not be unreasonably withheld). Such other Party also agrees to cooperate with the controlling Party and its counsel in the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person.
(ce) In the event A claim for indemnification for any Indemnified Party should have a claim against any Indemnifying Party hereunder that does matter not involve involving a Third Party Claim being will be asserted against or by notice to the Party from whom indemnification is sought to be collected from such Indemnified Party, as promptly as practicable after the date on which the Indemnified Party shall deliver becomes aware of facts giving rise to the claim for indemnification, which notice will describe in reasonable detail and with reasonable specificity the nature of such the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement and will include, to the extent estimable, a reasonable estimate of the Losses suffered with respect thereto (if reasonably determinable) (a “Direct Claim”). Notwithstanding the foregoing, the delay or failure to give the notice provided in, or in accordance with with, this Section 10.6. The failure to provide such notice, however, shall 11.4(e) will not release relieve the Indemnifying Party from any of its obligations under this Article 10 11, except to the extent such Indemnifying Party is actually prejudiced by such delay or failure.
(f) An Indemnifying Party may reply to a Direct Claim made under Section 11.4(e) by written notice given to the Indemnified Party, which notice shall state (x) whether such Indemnifying Party agrees or disagrees that the Direct Claim asserted by the Indemnified Party is a valid claim under this Agreement, (y) whether such Indemnifying Party agrees or disagrees with respect to the amount of the Losses in such Direct Claim and (z) if such Indemnifying Party disagrees with either the validity of such claim or the amount of such Losses, the basis for such disagreement.
(g) If the Indemnifying Party does not give the Indemnified Party a notice pursuant to Section 11.4(f) disputing a Direct Claim within thirty (30) days after receipt of such Direct Claim (the “Indemnity Notice Period”), or if the Indemnifying Party gives notice that such Direct Claim is prejudiced uncontested, then, subject to the limitations in this Article 11, the Indemnifying Party shall promptly pay or cause to be paid to the Indemnified Party, by wire transfer of immediately available funds, the amount of such failureLosses specified in such Direct Claim.
(h) If the notice from the Indemnifying Party admits that a portion of the Direct Claim is a valid claim under this Article 11 and the remaining portion of the Direct Claim is disputed, then, subject to the limitations in this Article 11, the Indemnifying Party shall promptly pay or cause to be paid to the Indemnified Party, by wire transfer of immediately available funds, the amount of such mutually agreed Losses, and in each case of this clause (h), the disputed portion of such Direct Claim shall be resolved in accordance with Section 11.4(i).
(i) If the notice given by the Indemnifying Party as provided in Section 11.4(f) hereof disputes all or part of the claim or claims asserted in the Direct Claim by the Indemnified Party or the amount of Losses thereof within the Indemnity Notice Period (a “Disputed Claim”), then, to the extent of the disputed portion of the Direct Claim, the Direct Claim shall be treated as a Disputed Claim. The Indemnified Party and the Indemnifying Party shall make a reasonable good faith effort to resolve any Disputed Claim for a period of thirty (30) days following the Indemnity Notice Period.
Appears in 1 contract
Sources: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Procedures. The following provisions shall apply to claims for Losses from claims by a third party (a) In order for a Purchaser Indemnitee "Claim"). The indemnifying party shall have the absolute right, in its sole discretion and expense, to elect to defend, contest or Company Indemnitee (the “otherwise protect against any such Claim with legal counsel of its own selection. The Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability Parties or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”)Company Parties, such Indemnified Party shall deliver notice thereof to as the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such noticecase may be, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to but not the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimobligation, to assume participate, at their own expense, in the defense thereof at through counsel of their own choice and shall have the expense of right, but not the Indemnifying Party with counsel selected by the Indemnifying Party obligation, to assert any and reasonably satisfactory to all cross-claims or counterclaims they may have. The Indemnified Parties or the Indemnified Party. If Company Parties, as the Indemnifying Party assumes case may be, shall, and shall cause their Affiliates to, at all times cooperate in all reasonable ways with, make their relevant files and records available for inspection and copying by, and make their employees available or otherwise render reasonable assistance to, the indemnifying party (i) in its defense of any action for which indemnity is sought hereunder; and (ii) its prosecution under the last sentence of this section of any related claim, cross-complaint, counterclaim or right of subrogation. In the event the indemnifying party fails timely to defend, contest or otherwise protect against any such Third Party Claimsuit, action, investigation, claim or proceeding, the Indemnified Party Parties or the Indemnified Company Parties, as the case may be, shall have the right to employ separate counsel and to participate in the defense thereofright, but not the fees obligation, to defend, contest, assert cross-claims or counterclaims or otherwise protect against the same. No claim or action subject hereto may be settled unless the Indemnified Parties or the Indemnified Company Parties, as the case may be, and expenses of the indemnifying party consent thereto, such counsel consent not to be unreasonably withheld. The indemnifying party shall be at subrogated to the expense claims or rights of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, Parties or the Indemnified Party shall cooperate Company Parties, as the case may be, as against any other Persons with the Indemnifying Party in such defense and make available respect to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required any Loss paid by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations indemnifying party under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failuresection.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver written notice thereof (a “Claims Notice”) to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party describing in reasonable detail the facts giving rise to any claims for indemnification hereunder and shall include in the Claims Notice (if then known) the amount or method of written notice computation of the amount of such claim and a reference to the provision of this Agreement or any agreement, certificate or instrument delivered pursuant to this Agreement upon which such claim is based; provided, that a Claims Notice in respect of a Third Party Claim as to which indemnification is sought shall be given promptly after a cause of action is filed in accordance with Section 10.6a court of competent jurisdiction. The failure by the Indemnified Party to provide such noticeClaims Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII, except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubtthereby, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to relieve the Indemnifying Party from any other agreement obligation or instrument entered into between Purchaser liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. In the event that more than one Seller is an Indemnifying Party hereunder, the Indemnified Party may provide the notices and the Companyother communications required pursuant to this Section 8.4 solely to IHR as agent for such other Sellers.
(b) The Indemnifying Party shall have thirty (30) days from the receipt of the Claims Notice from the Indemnified Party to notify the Indemnified Party whether or not the Indemnifying Party desires, at the Indemnifying Party’s sole cost and expense, to defend the Indemnified Party against such claim or demand; provided, that the Indemnified Party is hereby authorized prior to and during such 30-day period, and at the cost and expense of the Indemnifying Party, to file any motion, answer or other pleading that it shall reasonably deem necessary to protect its interests or those of the Indemnifying Party. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim30-day period, to assume the defense thereof of such Third Party Claim at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the 30-day period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim in the exercise of its reasonable judgment; provided, however, that the consent of the Indemnifying Party to any settlement, compromise or discharge of such Third Party Claim shall be required if such settlement, compromise or discharge shall result in any liability to, or equitable relief against, the Indemnified Party, which consent shall not be unreasonably withheld. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense (such expenses not to include costs associated with obtaining and assimilating records of the Target Companies or employee costs, including salary and benefits, associated with the time spent with respect to the defense of such Third Party Claim by employees of the Target Companies) cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that (1) 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settlecompromise, compromise settle or discharge, such Third Party Claim without the Indemnifying Indemnified Party’s prior written consent and (which 2) the Indemnified Party shall consent to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms requires that the Indemnifying Party pay the full amount of the liability in connection therewith, that otherwise releases the Indemnified Party completely and with prejudice in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be unreasonably withheld)entitled to assume the defense of any Third Party Claim (and, in addition to any other Losses, shall be liable for the fees and expenses of counsel incurred by the Indemnified Party in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnified Party, and the Indemnified Party shall have the sole and exclusive right to settle any such Third Party Claim.
(c) Subject to Section 8.5(a), the indemnification required hereunder in respect of a Third Party Claim shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses thereof, as and when bills are received by the Indemnifying Party or Losses incurred have been notified to the Indemnifying Party, together with interest on any amount not repaid as necessary to the Indemnified Party by the Indemnifying Party within ten (10) Business Days after receipt of notice therefor.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within sixty (60) days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(f) Notwithstanding the provisions of Section 10.8, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee Person (the “Indemnified Party”) to be entitled to any amount to be paid or any indemnification provided for under this Agreement as a result Section 9.01 or Section 9.02 in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to must as promptly as reasonably practicable notify the party against whom indemnity is sought Indemnifying Party (the “Indemnifying Party”) in writing of the Third Party Claim. Such notice shall contain, with respect to each claim, such facts and information as are then reasonably available, including the estimated amount of Losses and the specific basis for indemnification hereunder. The failure to give such notification shall not affect the payment or the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. The Indemnified Party shall deliver to the Indemnifying Party, as promptly after as reasonably practicable following such Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by such Indemnified Party of written notice of relating to the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyClaim.
(b) The If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall have be entitled to participate in the rightdefense thereof and, upon if it so chooses, by giving written notice to the Indemnified Party within 30 thirty (30) days of receipt of notice from after the Indemnified Party has given notice of the commencement of such Third Party Claim acknowledging in writing its irrevocable obligation to indemnify the Indemnified Party against any indemnifiable Losses that may result from the Third Party Claim, to assume (subject to the provisions of this Agreement) the defense thereof of such claim at the Indemnifying Party’s expense of the Indemnifying Party and with counsel selected by the Indemnifying Party and of its choice that is reasonably satisfactory acceptable to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claimdefense, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereofthereof and to employ counsel, but 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 shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If (i) the Indemnifying Party (A) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, or (B) fails to actively and diligently pursue a Third Party Claim and is provided a written notice of such failure by the Indemnified Party and such failure is not reasonably cured within ten (10) Business Days after receipt of such notice, (ii) the Indemnified Party has been advised by outside legal counsel shall that there exists any conflict of interest between the Indemnified Party and the Indemnifying Party in connection with the defense of such Third Party Claim that would make the representation by the same counsel or the counsel selected by the Indemnifying Party inappropriate or the Indemnified Party would lose any defenses available to it which are different from or in addition to those available to the Indemnifying Party, (iii) the claim seeks an injunction or equitable relief against the Indemnified Party or would, in the case of a Purchaser Indemnitee, in the good faith belief of such Purchaser Indemnitee, be detrimental to the relationship with customers or suppliers, or the business of Purchaser or the Acquired Companies, (iv) such Third Party Claim seeks to impose criminal liability on an Indemnified Party, (v) the assumption of the defense by the Indemnifying Party is reasonably likely to cause a Purchaser Indemnitee to lose coverage under the RWI Policy or (vi) due to the limitations elsewhere in this Article IX, the applicable indemnification liability in respect of such Third Party Claim is less than the amount being sought (or that could be awarded in respect of such Third Party Claim), then such Indemnified Party will have the right to defend against such Third Party Claim at the Indemnifying Party’s expense of and the Indemnifying Party will have the right to be represented with respect to such Third Party Claim by counsel at its own expense and shall cooperate in good faith in such defense, it being understood that the Indemnified Party. If ’s right to indemnification for a Third Party Claim will not be adversely affected by assuming the defense of such Third Party Claim.
(c) The Indemnified Party and Indemnifying Party assumes shall cooperate with each other in all commercially reasonable respects in connection with the defense of any Third Party Claim, including retaining and providing the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials other party records and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is that are reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree relevant to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claimmaking employees reasonably available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall not agree to any settlement, compromise or discharge of a Third Party Claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), unless such settlement, compromise or discharge provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities in connection with such Third Party Claim and does not (i) create any liability of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder (and the Indemnifying Party will promptly reimburse the Indemnified Party for such indemnifiable liability) or (ii) provide for any admission of criminal liability or wrongdoing or any injunctive relief or other non-monetary obligation affecting the Indemnified Party. If the Indemnified Party has assumed the defense, it shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 9.01 or Section 9.02 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver written notice of such claim in accordance with promptly to the Indemnifying Party. Subject to Section 10.6. The 9.04 and Section 9.06, the failure by any Indemnified Party to provide such notice, however, so notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article 10 Section 9.01 or Section 9.02, except to the extent that the Indemnifying Party is demonstrates that it has been actually prejudiced by such failure. If the Indemnifying Party does not respond to any such claim within thirty (30) days after its receipt of such notice, then such claim will be deemed accepted.
(e) Purchaser and Seller shall cooperate with each other with respect to resolving any claim or liability with respect to which one party is obligated to pay any amount to or indemnify the other party hereunder, including by making commercially reasonably efforts to mitigate or resolve any such claim or liability.
(f) An Indemnifying Party’s liability pursuant to this Article IX or Section 6.04 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting any insurance proceeds received by the Indemnified Party and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its reasonable best efforts to recover (or cause the Acquired Companies to recover) under insurance policies or indemnity, contribution or other similar agreements for any Losses hereunder. An Indemnified Party’s ability to be indemnified for Losses hereunder shall not be affected by any knowledge it may have acquired or had the ability to acquire prior to the Closing.
(g) Seller shall not be liable to pay any amount under this Article IX or Section 6.04 for any Losses to the extent expressly included on the Closing Statement in calculating the Adjusted Working Capital, Unpaid Company Transaction Expenses or Closing Date Indebtedness.
(h) In no event shall any Indemnified Party be entitled to obtain reimbursement or restitution more than once in respect of the same Loss.
Appears in 1 contract
Procedures. (a) In order for An Indemnified Party seeking indemnification in respect of, arising out of or involving a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof (except that the defense or prosecution of such claim shall be tendered to the insurance carrier of the W&I Insurance Policy if such carrier has assumed the defense thereof under the W&I Insurance Policy) at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief, any Third Party Claim relating to Taxes or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect (or is not entitled) to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 7.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim (except that the defense, prosecution or settlement of such claim may be tendered by the Indemnified Party to the insurance carrier of the W&I Insurance Policy if such carrier has agreed to assume the defense thereof under the W&I Insurance Policy). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of wrongdoing, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such 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 which releases (iii) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third Party Claim. Whether or not other than solely the Indemnifying Party assumes the defense payment of a Third Party Claim, money damages for which the Indemnified Party shall not admit any liability with respect to, will be indemnified hereunder or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without (iv) requires the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)of the carrier of the W&I Insurance Policy under the terms of the W&I Insurance Policy.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VII.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) Notwithstanding the provisions of Sections 8.8 and 8.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(f) An Indemnifying Party shall not be liable in respect of, arising out of or involving a Loss or a claim or demand made by any person against the Indemnifying Person unless a Claim Notice is delivered to the Indemnifying Person on or before the survival periods set out in Section 7.1.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee If either Party seeks indemnification under this Article VII (the “Indemnified Party”), it shall give notice (“Claim Notice”) to be entitled other Party (the “Indemnifying Party”) of the basis of the claim (the “Claim”) (i) within a reasonable time after discovery of the facts and (ii) in any event, within the time periods set forth in Section 7.1, provided that the failure to give such notice shall not relieve the Indemnifying Party of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made liability hereunder except to the extent that the Indemnifying Party is materially adversely prejudiced by any Person against such failure. The Indemnifying Party shall give notice to the Indemnified Party within thirty (60) days after receipt of the notice requested by this Section 7.3 advising whether it (i) acknowledges its obligation to indemnify or (ii) disputes its obligation to indemnify. If the Indemnifying Party acknowledges its indemnification obligation with respect to the Claim, and (i) such Claim is based upon an asserted liability or obligation to a person or entity that is not a party to this Agreement (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession defend or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of settle such 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 or (ii) if such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or Claim is not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer be entitled to settle, compromise or discharge, immediate satisfaction of such Third Party Claim without Claim. If the Indemnifying Party’s prior written consent (which consent shall Party does not be unreasonably withheld).
(c) In notify the event any Indemnified Party should have within fifteen (15) business days following receipt of notice of a claim against any Indemnifying Party hereunder Claim that does is not involve a Third Party Claim being asserted against or sought to that it disputes such Claim, such Claim shall be collected from such deemed a liability of the Indemnifying Party and Indemnifying Party shall pay the amount of the Claim on demand by the Indemnified Party, or in the case of any notice in which the amount of the Claim is estimated, on such later date when the amount of the Claim is finally determined. If the Indemnifying Party disputes the Claim in a timely manner as set forth herein, the Indemnifying Party and the Indemnified Party shall deliver notice proceed in good faith to negotiate a resolution of such claim the dispute, or, if necessary, to resolution of the dispute in accordance with Section 10.6. The failure to provide such notice, however, shall not release a manner determined by the Indemnifying Party from parties or by any of its obligations under this Article 10 except to other means elected by the extent that the Indemnifying Party is prejudiced by such failureIndemnified Party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Entertainment Games, Inc.)
Procedures. Promptly after receipt by a Person entitled to indemnification under subsection (a) In order for a Purchaser Indemnitee or Company Indemnitee (the b) (an “Indemnified Party”) to be entitled to of notice of any indemnification provided for under this Agreement as a result of a Indemnified Liability pending or a threatened claim or demand made by any Person against the Indemnified Party it (a “Third Party Claim”), such Indemnified Party shall deliver give prompt written notice thereof (including copies of all papers served with respect to such claim) to the party against to whom indemnity the Indemnified Party is sought entitled to look for indemnification (the “Indemnifying Party”) promptly after receipt by such of the commencement thereof which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate HOU03:1138115.4 44 of the amount of damages attributable to the Third Party Claim to the extent feasible and the basis of the Indemnified Party’s request for indemnification under this Agreement; provided that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party except to the extent the Indemnifying Party demonstrates that it is prejudiced thereby. In case any Claim that is subject to indemnification under subsection (a) shall be brought against an Indemnified Party and it shall give notice to the Indemnifying Party of written notice the commencement thereof, the Indemnifying Party may, and at the request of the Indemnified Party shall, participate in and control the defense of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any counsel of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment thereof has been specifically authorized in writing by the Indemnifying Party, (ii) the Indemnifying Party failed to assume the defense and employ counsel or failed to diligently prosecute or settle the Third Party Claim or (iii) there shall exist or develop a conflict that would ethically prohibit counsel to the Indemnifying Party from representing the Indemnified Party. If requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Claim that the Indemnifying Party elects to contest, including, without limitation, by making any counterclaim against the Person asserting the Third Party Claim or any cross-complaint against any Person, in each case only if and to the extent that any such counterclaim or cross-complaint arises from the same actions or facts giving rise to the Third Party Claim. The Indemnifying Party shall be the sole judge of the acceptability of any compromise or settlement Of any claim, litigation or proceeding in respect of which indemnity may be sought hereunder, provided that the Indemnifying Party will give the Indemnified Party reasonable prior written notice of any such proposed settlement or compromise and will not consent to the entry of any judgment or enter into any settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld. The Indemnifying Party (if the Indemnified Party is entitled to indemnification hereunder) shall reimburse the Indemnified Party for its reasonable out of pocket costs incurred with respect to such cooperation. If the Indemnifying Party fails to assume the defense of a Third Party Claim within a reasonable period after receipt of written notice pursuant to the first sentence of this subparagraph (c), or if the Indemnifying Party assumes the defense of any the Indemnified Party pursuant to this subparagraph (c) but fails diligently to prosecute or settle the Third Party Claim, then the Indemnified Party shall cooperate with have the right to defend, at the sole cost and expense of the Indemnifying Party in (if the Indemnified Party is entitled to indemnification hereunder), the Third Party Claim by all appropriate proceedings, which proceedings shall be promptly and vigorously prosecuted by the Indemnified Party to a final conclusion or settled. The Indemnified Party shall have full control of such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim proceedings; provided 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, settle such Third Party Claim without the written consent of the Indemnifying Party’s prior written consent (, which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any . The Indemnifying Party hereunder that does may participate in, but not involve a Third Party Claim being asserted against control, any defense or sought to be collected from such Indemnified Party, settlement controlled by the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure pursuant to provide such noticethis Section, however, shall not release and the Indemnifying Party from any of shall bear its obligations under this Article 10 except own costs and expenses with respect to the extent that the Indemnifying Party is prejudiced by such failureparticipation.
Appears in 1 contract
Sources: Limited Partnership Agreement (LyondellBasell F&F Holdco, LLC)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled The terms of this Section 10.3 shall apply to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party "Claim”), such ") for indemnification under the terms of Sections 10.1. The Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of give prompt written notice of such Claim to the Third Party Claim in accordance with Section 10.6. The indemnifying party (the "Indemnifying Party") under the applicable Section, which party may assume the defense thereof, provided that any delay or failure to provide such notice, however, shall not release so notify the Indemnifying Party from any shall relieve the Indemnifying Party of its obligations under hereunder only to the extent, if at all, that it is materially prejudiced by reason of such delay or failure. Any such notice shall (i) describe in reasonable detail the facts and circumstances with respect to the Claim being asserted and (ii) refer to this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure10. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Indemnified Party shall have the right, upon written notice right to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with approve any counsel selected by the Indemnifying Party and reasonably satisfactory to approve the terms of any proposed settlement, such approval not to be unreasonably delayed or withheld (unless such settlement provides only, as to the Indemnified Party. If , the payment of money damages actually paid by the Indemnifying Party assumes and a complete release of the Indemnified Party in respect of the Claim in question). Notwithstanding any of the foregoing to the contrary, the provisions of this Article 10 shall not be construed so as to provide for the indemnification of any Indemnified Party for any liability to the extent (but only to the extent) that such indemnification would be in violation of applicable law or that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the provisions of this Article 10 to the fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of any Claim, the Indemnifying Party will keep the Indemnified Party advised as to all material developments in connection with such Third Claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or served in connection therewith. The Indemnified Party shall provide reasonable assistance to the Indemnifying Party in the defense of the Claim.
(c) In the event that the Indemnifying Party fails to assume the defense of any Claim within ten (10) business days after receiving written notice thereof, the Indemnified Party shall have the right, subject to the Indemnifying Party's right to employ separate counsel and to participate in assume the defense thereofpursuant to the provisions of this Article 10, but to undertake the fees and expenses defense, compromise or settlement of such counsel shall be at Claim for the expense account of the Indemnified Indemnifying Party. If Unless and until the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnifying Party shall advance to the Indemnified Party shall cooperate any of its reasonable attorneys' fees and other costs and expenses incurred in connection with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party such Claim, the . Each Indemnified Party shall agree in writing prior to any settlementsuch advance that, compromise in the event he or discharge of it receives any such Third advance, such Indemnified Party Claim that shall reimburse the Indemnifying Party may recommend for such fees, costs and expenses to the extent that by its terms obligates the Indemnifying Party it shall be determined that he or it was not entitled to pay the full amount indemnification under this Article 10.
(d) Notwithstanding any of the liability in connection with such Third Party Claim, and which releases foregoing to the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claimcontrary, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent provisions of this Article 10 shall not be unreasonably withheld).
(c) In construed so as to provide for the event indemnification of any Indemnified Party should have a claim against for any Indemnifying Party hereunder liability to the extent (but only to the extent) that does such indemnification would be in violation of applicable law or such liability may not involve a Third Party Claim being asserted against be waived, modified, or sought limited under applicable law, but shall be construed so as to be collected from such Indemnified Party, effectuate the Indemnified Party shall deliver notice provisions of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the fullest extent permitted by law; provided, that if and to the extent that the Indemnifying Party's indemnification obligation under this Article 10 is unenforceable for any reason, the Indemnifying Party is prejudiced hereby agrees to make the maximum contribution permissible under applicable law to the payment and satisfaction of the losses of the Indemnified Party, except to the extent such losses are found in a final, nonappealable judgment by such failurea court of competent jurisdiction to have resulted from the Indemnified Party's gross negligence or willful misconduct.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Clearwire Corp)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A Party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of of, arising out of, or relating to a Indemnified Liability or Loss involving a claim or demand made by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party Party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 9 except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 thirty (30) days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period set forth above, the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim in accordance with the terms of this Section 9.4(b); provided that such settlement shall not be deemed evidence that the Indemnified Party is entitled to indemnification hereunder nor shall it be determinative of the amount of Loss. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the sole expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of wrongdoing by the Indemnified Party, (ii) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such 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 which releases or (iii) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third Party Claim. Whether or not other than solely the Indemnifying Party assumes the defense payment of a Third Party Claim, money damages for which the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not will be unreasonably withheld)fully indemnified hereunder.
(c) In the event any An Indemnified Party should have seeking indemnification as a result of, arising out of or relating to a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with reasonably detailed information of the facts and circumstances underlying such claim in accordance along with Section 10.6a good faith estimate of Loss and supporting documents. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 9 except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article 9.
(d) The Indemnifying Party shall not be entitled to require that any Action be made or brought against any other Person before a claim is made against it hereunder by the Indemnified Party.
(e) In respect of any amounts due and payable by a Party, pursuant to this Article 9, such Party shall pay to the other Party such amounts by wire transfer of immediately available funds to an account designed by the other Party in writing.
Appears in 1 contract
Procedures. (ai) In order for a Purchaser Indemnitee or Company Indemnitee Except as otherwise provided in this Agreement, any party seeking any indemnification under this Section 10.2 (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to give the party against from whom indemnity indemnification is being sought (the an “Indemnifying Party”) promptly after receipt by notice of any matter which such Indemnified Party has determined has given or could give rise to a right of written indemnification under this Agreement as soon as practicable after the party potentially entitled to indemnification becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section 10.2.
(ii) The liability of an Indemnifying Party under this Section 10.2 with respect to Damages arising from claims of any third party which are subject to the indemnification provided for in this Section 10.2 (“Third Party Claims”) shall be governed by and contingent upon the following additional terms and conditions. If an Indemnified Party shall receive notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party notice of such Third Party Claim in accordance with Section 10.6. The within twenty (20) days of the receipt by the Indemnified Party of such notice; provided, however, that the failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 Section 10.2 except to the extent that the Indemnifying Party is materially and irreparably prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have be entitled to assume and control the rightdefense of such Third Party Claim at its expense and through counsel of its choice if it acknowledges, upon written without qualification, its indemnification obligations hereunder and gives notice of its intention to do so to the Indemnified Party within 30 thirty (30) days of the receipt of such notice from the Indemnified Party; provided, however, that if there exists a material conflict of interest (other than one that is of a monetary nature) that would make it inappropriate for the same counsel to represent both the Indemnified Party of and the commencement of such Third Indemnifying Party, then the Indemnified Party Claimshall be entitled to retain its own counsel, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by Party, provided, that the Indemnifying Party shall not be obligated to pay the reasonable fees and reasonably satisfactory expenses of more than one separate counsel for all Indemnified Parties, taken together (except to the Indemnified Partyextent that local counsel are necessary or advisable for the conduct of such action or proceeding, in which case the Indemnifying Party shall also pay the reasonable fees and expenses of any such local counsel). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes not assume the defense of any Third Party ClaimClaim or litigation resulting therefrom, the Indemnified Party may defend against such claim or litigation in such manner as it may deem appropriate and may settle such claim or litigation on such terms as it may deem appropriate; provided, however, that in settling any action in respect of which indemnification is payable under this Article, it shall act reasonably and in good faith. In the event the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party Party, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If Similarly, in the Indemnifying event the Indemnified Party assumes is, directly or indirectly, conducting the defense of against any such Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. The Indemnifying Party shall agree to not, without the written consent of the Indemnified Party, (i) settle or compromise any settlement, compromise or discharge of such Third Party Claim that or consent to the Indemnifying Party may recommend and that entry of any judgment which does not include an unconditional written release by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the Indemnified Party from all liability in connection with respect of such Third Party Claim, and which releases (ii) settle or compromise any Third Party Claim if the settlement imposes equitable remedies or material obligations on the Indemnified Party completely in connection with other than financial obligations for which such Indemnified Party will be indemnified hereunder, or (iii) settle or compromise any Third Party ClaimClaim if the result is to admit civil or criminal liability or culpability on the part of the Indemnified Party or that gives rise to criminal liability with respect to the Indemnified Party. Whether or not No Third Party Claim which is being defended in good faith by the Indemnifying Party assumes in accordance with the defense terms of a Third Party Claim, this Agreement shall be settled or compromised by the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the written consent of the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Securities Purchase and Subscription Agreement (Inland American Real Estate Trust, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee If any Person who or Company Indemnitee which is entitled to seek indemnification under Section 10.2 (the an “Indemnified Party”) to be entitled to receives notice of the assertion or commencement of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person Third-Party Claim against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof with respect to which the party Person against whom indemnity or which such indemnification is being sought (the an “Indemnifying Party”) promptly is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) days after receipt by of such Indemnified Party of written notice of such Third-Party Claim. Such notice by the Third Indemnified Party will describe the Third-Party Claim in accordance with Section 10.6reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably estimable, of the Damages that have been or may be sustained by the Indemnified Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except will have the right to participate in, or, by giving written notice to the extent that Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party is prejudiced Party’s own expense and by such failure. For Indemnifying Party’s own counsel (which will be reasonably satisfactory to the avoidance of doubtIndemnified Party), the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyIndemnified Party will cooperate in good faith in such defense.
(b) The If, within ten (10) days after giving notice of a Third-Party Claim to an Indemnifying Party shall have pursuant to Section 10.3(a), an Indemnified Party receives written notice from the rightIndemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of Section 10.3(a), upon the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) days after receiving written notice from the Indemnified Party or if the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party within 30 days of receipt of notice from to that effect. If the Indemnified Party of the commencement fails to consent to such firm offer within ten (10) days after its receipt of such Third notice, the Indemnified Party Claimmay continue to contest or defend such Third-Party Claim and, to assume in such event, the defense thereof at the expense maximum liability of the Indemnifying Party with counsel selected by as to such Third-Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records and employees of the Indemnified Party necessary in connection with the Indemnifying Party’s defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably satisfactory to prompt written notice thereof, but in any event not later than ten (10) days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten (10) days within which to respond in writing to such Direct Claim. If the Indemnifying Party assumes does not so respond within such ten (10) day period, the defense of Indemnifying Party will be deemed to have rejected such Third Party Claimclaim, in which event the Indemnified Party shall have the right will be free to employ separate counsel and pursue such remedies as may be available to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with on the Indemnifying Party in such defense terms and make available subject to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense provisions of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)this Agreement.
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The A failure to provide such noticegive timely notice or to include any specified information in any notice as provided in Section 10.3(a), however10.3(b) or 10.3(c) will not affect the rights or obligations of any Party hereunder, shall not release the Indemnifying Party from any of its obligations under this Article 10 except and only to the extent that the Indemnifying that, as a result of such failure, any Party is which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially prejudiced by as a result of such failure.
Appears in 1 contract
Sources: Asset Purchase Agreement (Commerce Energy Group, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Each Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt notice thereof to the party against whom indemnity is sought (the “"Indemnifying Party”") promptly after receipt by such Indemnified Party of written notice of the Third assertion of any claim, or the commencement of any Action ("Claim") in respect of which indemnity may be sought under Section 11.02 and to provide the Indemnifying Party Claim in accordance such information with Section 10.6respect thereto that the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release so notify the Indemnifying Party from any shall not relieve the Indemnifying Party of its obligations under this Article 10 Section 11.02, except to the extent that such failure shall have actually prejudiced the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyParty.
(b) The Indemnifying Party shall have be entitled to participate in the rightdefense of any Claim asserted by any Person not a party to this Agreement ("Third Party Claim") and, upon written subject to the limitations set forth in this Section 11.03, shall be entitled to control and appoint lead counsel for such defense, in each case at its expense. Within 30 days following the receipt of notice by the Indemnifying Party of any Third Party Claim and such documentation relating to such Third Party Claim in the possession of the Indemnified Person that the Indemnifying Party reasonably requests, the Indemnifying Party shall provide notice to the Indemnified Party within 30 days Person of receipt of notice from the Indemnified Party its election to assume control of the commencement defense of such Third Party Claim, to assume Claim in accordance with the defense thereof at the expense provisions of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. this Section 11.03.
(c) If the Indemnifying Party assumes the defense control of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party ClaimClaim in accordance with the provisions of this Section 11.03, (i) the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall Person (A) will not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such any Third Party Claim without the Indemnifying Party’s 's prior written consent (such consent not to be unreasonably withheld or delayed) and (B) will agree to any settlement of such Third Party Claim if such settlement fully, completely and unconditionally releases the Indemnified Person from all liabilities and obligations with respect to such Third Party Claim and does not impose any injunctive or other equitable relief against the Indemnified Person (and, without the Indemnified Person's consent (which consent shall not be unreasonably withheld or delayed) the Indemnifying Party will not enter into any settlement which does not satisfy such criteria) and (ii) the Indemnified Person shall be entitled to participate in the defense of such Third Party Claim and to employ separate counsel of its choice for such purpose at its own expense and shall not be responsible for any attorneys' fees of the Indemnifying Party; provided, however, that the Indemnified Person shall have the right to employ, at the Indemnifying Party's expense, one counsel of its choice in each applicable jurisdiction (if more than one jurisdiction is involved) to represent the Indemnified Person if, in the Indemnified Person's reasonable judgment, there exists an actual or potential conflict of interest between the Indemnified Person and the Indemnifying Party or if the Indemnifying Party (A) elects not to defend, compromise or settle a Third-Party Claim, (B) fails to notify the Indemnified Person within the required time period of its election as provided in this Section 11.03 or (C) having timely elected to defend a Third-Party Claim, fails, in the reasonable judgment of the Indemnified Person, after at least 30 days' notice to the Indemnifying Party, to adequately prosecute or pursue such defense, and in each such case the Indemnified Person may defend such Third-Party Claim on behalf of and for the account and risk of the Indemnifying Party; provided, that the Indemnified Person shall defend the Third Party Claim in good faith and shall not enter into any settlement of such Third Party Claim without the prior consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed); and provided, further, that the Indemnifying Party may resume within a reasonable period of time under the circumstances its right to defend, compromise or settle a Third Party Claim upon providing written notice thereof to the Indemnified Person and thereafter shall not be liable for the fees and expenses of the Indemnified Person's counsel (except for such fees and expenses as are incurred in the transition of such defense to the Indemnifying Party).
(cd) In Each party shall cooperate, and cause their respective Affiliates to cooperate, in the event defense or prosecution of any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against and shall furnish or sought cause to be collected from furnished such Indemnified Partyrecords, the Indemnified Party shall deliver notice of information and testimony, and attend such claim conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureconnection therewith.
Appears in 1 contract
Procedures. Claims for indemnification under this Agreement will be asserted and resolved as follows:
(a) In order for a Purchaser Indemnitee Any Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party seeking indemnification under this Agreement (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person asserted against the Indemnified Party by a third party (a “Third Party Claim”), such Indemnified ) in respect of any matter that is subject to indemnification under Section 11.2 or Section 11.3 will (i) promptly notify the other Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure and (ii) as promptly as practicable transmit to provide such notice, however, shall not release the Indemnifying Party from a written notice (a “Claim Notice”) describing in reasonable detail and with reasonable specificity the nature of the Third Party Claim, a copy of all material papers served with respect to such claim (if any), the basis of the Indemnified Party’s request for indemnification under this Agreement and an estimate of any Losses suffered with respect thereto (if reasonably determinable). Notwithstanding the foregoing, the delay or failure to give the notice provided in, or in accordance with, this Section 11.4(a) will not relieve the Indemnifying Party of its obligations under this Article 10 11, except to the extent that the such Indemnifying Party is actually prejudiced by such delay or failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall will have the right, upon written notice right to defend the Indemnified Party within 30 days against such Third Party Claim (except in the case of receipt of notice from an Excluded Matter) if the Indemnifying Party promptly notifies the Indemnified Party of (and in any event within twenty (20) days after having received any Claim Notice) that it is exercising its right to defend the commencement of Indemnified Party against such Third Party Claim, . If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume the defense thereof at of the expense of Third Party Claim, then the Indemnifying Party will have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. If , in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party assumes in accordance with this Section 11.4(b). The Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the Indemnifying Party will not enter into any settlement agreement without the written consent of the Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent will not be required if (i) the settlement agreement contains a complete and unconditional general release by the third party asserting the Third Party Claim of all Indemnified Parties affected by the Third Party Claim, (ii) the settlement agreement does not contain any admission of fault or material sanction or restriction upon or otherwise materially adversely affect the conduct or operation of any business conducted by the Indemnified Party or its Affiliates, and (iii) the Indemnifying Party pays or causes to be paid in full all amounts arising out of such settlement. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 11.4(b), and the Indemnified Party will bear its own costs and expenses with respect to such participation unless, in the reasonable judgment of the Indemnified Party, there is a conflict of interest (including the availability to the Indemnified Party of one or more defenses that are not available to the Indemnifying Party) that would prevent the same counsel from representing both the Indemnified Party and the Indemnifying Party, then the Indemnified Party will be entitled to retain one separate counsel who shall have a right to reasonably participate in but not control the defense of such Third Party Claim, the reasonable costs and expenses of which will be borne by the Indemnifying Party. Notwithstanding the foregoing, if a Third Party Claim (A) seeks non-monetary relief which, if granted, could materially adversely affect the Indemnified Party or any of its Affiliates and that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be readily separated from any related claim for money damages (provided that, 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) or (B) involves a criminal proceeding (each, an “Excluded Matter”), then the Indemnified Party shall have the right to employ separate counsel defend and to participate in control the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. applicable Third Party Claim.
(c) If the Indemnifying Party assumes does not notify the defense Indemnified Party that the Indemnifying Party elects to defend the Indemnified Party pursuant to Section 11.4(b) within twenty (20) days after receipt of any Claim Notice (or notifies the Indemnified Party within such time period that it elects not to defend the Indemnified Party) or thereafter fails to reasonably diligently conduct such defense, then the Indemnified Party shall have the right to defend itself against the applicable Third Party Claim, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party shall cooperate with the Indemnifying Party is actually entitled to indemnification hereunder) in such defense and make available regard to the Indemnifying Third Party all witnesses, pertinent records, materials and information in Claim with counsel reasonably selected by the Indemnified Party’s possession , in all appropriate proceedings. In such circumstances or under in the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense case of any Third Party Claiman Excluded Matter, the Indemnified Party shall agree to will defend any settlementsuch Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the Indemnified Party may not enter into any compromise or discharge settlement of such Third Party Claim that if indemnification is to be sought hereunder, without the Indemnifying Party’s consent (which consent will not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.4(c) or in the case of an Excluded Matter, and the Indemnifying Party may recommend will bear its own costs and that expenses with respect to such participation.
(d) If requested by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes controlling the defense of a Third Party Claim, the other Party agrees, at the sole cost and expense of the controlling Party (provided that such cost and expense shall nonetheless be that of the Indemnifying Party if the Indemnified Party shall not admit is actually entitled to indemnification hereunder), to cooperate with the controlling Party and its counsel in contesting any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without that the Indemnifying controlling Party elects to contest, including providing reasonable access to documents, records and information. In addition, such other Party will make its personnel reasonably available at no cost to the controlling Party for conferences, discovery, proceedings, hearings, trials or appeals as may be reasonably requested by the controlling Party’s prior written consent (which consent shall not be unreasonably withheld). Such other Party also agrees to cooperate with the controlling Party and its counsel in the making of any related counterclaim against the Person asserting the Third Party Claim or any cross complaint against any Person.
(ce) In the event A claim for indemnification for any Indemnified Party should have a claim against any Indemnifying Party hereunder that does matter not involve involving a Third Party Claim being will be asserted against or by notice to the Party from whom indemnification is sought to be collected from such Indemnified Party, as promptly as practicable after the date on which the Indemnified Party shall deliver becomes aware of facts giving rise to the claim for indemnification, which notice will describe in reasonable detail and with reasonable specificity the nature of such the claim and the basis of the Indemnified Party’s request for indemnification under this Agreement and will include, to the extent estimable, a reasonable estimate of the Losses suffered with respect thereto (if reasonably determinable) (a “Direct Claim”). Notwithstanding the foregoing, the delay or failure to give the notice provided in, or in accordance with with, this Section 10.6. The failure to provide such notice, however, shall 11.4(e) will not release relieve the Indemnifying Party from any of its obligations under this Article 10 11, except to the extent such Indemnifying Party is actually prejudiced by such delay or failure.
(f) An Indemnifying Party may reply to a Direct Claim made under Section 11.4(e) by written notice given to the Indemnified Party, which notice shall state (x) whether such Indemnifying Party agrees or disagrees that the Direct Claim asserted by the Indemnified Party is a valid claim under this Agreement, (y) whether such Indemnifying Party agrees or disagrees with respect to the amount of the Losses in such Direct Claim and (z) if such Indemnifying Party disagrees with either the validity of such claim or the amount of such Losses, the basis for such disagreement.
(g) If the Indemnifying Party does not give the Indemnified Party a notice pursuant to Section 11.4(f) disputing a Direct Claim within thirty (30) days after receipt of such Direct Claim (the “Indemnity Notice Period”), or if the Indemnifying Party gives notice that such Direct Claim is prejudiced uncontested, then, subject to the limitations in this Article 11, the Indemnifying Party shall promptly pay or cause to be paid to the Indemnified Party, by wire transfer of immediately available funds, the amount of such failureLosses specified in such Direct Claim.
(h) If the notice from the Indemnifying Party admits that a portion of the Direct Claim is a valid claim under this Article 11 and the remaining portion of the Direct Claim is disputed, then, subject to the limitations in this Article 11, the Indemnifying Party shall promptly pay or cause to be paid to the Indemnified Party, by wire transfer of immediately available funds, the amount of such mutually agreed Losses, and in each case of this clause (h), the disputed portion of such Direct Claim shall be resolved in accordance with Section 11.4(i).
(i) If the notice given by the Indemnifying Party as provided in Section 11.4(f) hereof disputes all or part of the claim or claims asserted in the Direct Claim by the Indemnified Party or the amount of Losses thereof within the Indemnity Notice Period (a “Disputed Claim”), then, to the extent of the disputed portion of the Direct Claim, the Direct Claim shall be treated as a Disputed Claim. The Indemnified Party and the Indemnifying Party shall make a reasonable good faith effort to resolve any Disputed Claim for a period of thirty (30) days following the Indemnity Notice Period.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee If any Person who or Company Indemnitee (the “Indemnified Party”) to be which is entitled to seek indemnification under Section 10.2 or Section 10.3 (an "INDEMNIFIED PARTY") receives notice of the assertion or commencement of any Third-Party Claim against such Indemnified Party with respect to which the Person against whom or which such indemnification provided for is being sought (an "INDEMNIFYING PARTY") is obligated to provide indemnification under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against Agreement, the Indemnified Party (a “Third will give such Indemnifying Party Claim”)reasonably prompt written notice thereof, such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly but in any event not later than 20 days after receipt by of such Indemnified Party of written notice of such Third-Party Claim. Such notice by the Third Indemnified Party will describe the Third-Party Claim in accordance with Section 10.6reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except will have the right to participate in, or, by giving written notice to the extent that Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party is prejudiced Party's own expense and by such failure. For Indemnifying Party's own counsel (reasonably satisfactory to the avoidance of doubtIndemnified Party), the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyIndemnified Party will cooperate in good faith in such defense.
(b) The If, within ten days after giving notice of a Third-Party Claim to an Indemnifying Party shall have pursuant to Section 10.4(a), an Indemnified Party receives written notice from the rightIndemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of Section 10.4(a), upon the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps, the Indemnified Party may assume its own defense, and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, the Indemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party within 30 days of receipt of notice from to that effect. If the Indemnified Party of the commencement fails to consent to such firm offer within ten days after its receipt of such Third notice, the Indemnified Party Claimmay continue to contest or defend such Third-Party Claim and, to assume in such event, the defense thereof at the expense maximum liability of the Indemnifying Party with counsel selected by as to such Third-Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records, and employees of the Indemnified Party necessary in connection with the Indemnifying Party's defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a "DIRECT CLAIM") will be asserted by giving the Indemnifying Party reasonably satisfactory to prompt written notice thereof, but in any event not later than 20 days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of ten days within which to respond in writing to such Direct Claim. If the Indemnifying Party assumes does not so respond within such ten day period, the defense of Indemnifying Party will be deemed to have rejected such Third Party Claimclaim, in which event the Indemnified Party shall have the right will be free to employ separate counsel and pursue such remedies as may be available to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with on the Indemnifying Party in such defense terms and make available subject to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense provisions of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)this Agreement.
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The A failure to provide such noticegive timely notice or to include any specified information in any notice as provided in Section 10.4(a), however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.10.4(b) or 10.4
Appears in 1 contract
Sources: Asset Purchase Agreement (General Automation Inc/Il)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) If an event giving rise to be entitled to any indemnification provided for under this Agreement occurs or is alleged and the party or parties entitled to receive the benefits of the indemnification provisions hereunder (the "AGGRIEVED PARTY") asserts that a party or parties has become obligated to the Aggrieved Party pursuant to Section 9.1 hereof (the "INDEMNIFYING PARTY"), or if any suit, action, investigation, claim or proceeding (each *Portions of this document have been intentionally omitted and filed separately with the Commission pursuant to a request for confidential treatment. 71 a "CLAIM") is begun, made or instituted as a result of a Indemnified Liability or a claim or demand made by any Person against which the Indemnified Indemnifying Party (a “Third may become obligated to the Aggrieved Party Claim”)hereunder, such Indemnified the Aggrieved Party shall deliver give written notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) , promptly after receipt by such Indemnified Aggrieved Party has actual knowledge of written notice of the Third Party any Claim in accordance with Section 10.6. The failure as to provide such noticewhich indemnity may be sought; provided, however, that the failure of any Aggrieved Party to give notice as provided herein shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 Section 9.2 except to the extent that the Indemnifying Party is materially prejudiced by such failurethereby. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall will have the right, at its option and at its sole cost and expense, upon written timely notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party ClaimAggrieved Party, to assume control of the defense thereof at (or otherwise contest or protect the expense Aggrieved Party against any such Claim) of any Claim by counsel of the Indemnifying Party with Party's choice, provided, however, such counsel selected is reasonably satisfactory to the Buyer. Failure by the Indemnifying Party and reasonably satisfactory to notify the Aggrieved Party of its election to defend any such action within a reasonable time, but in no event more than fifteen days after notice thereof shall have been given to the Indemnified Indemnifying Party. If , shall be deemed a waiver by the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the its right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of defend such counsel shall be at the expense of the Indemnified PartyClaim. If the Indemnifying Party assumes the defense of any Third Party such Claim, the Indemnified Party shall cooperate with obligations of the Indemnifying Party as to such Claim shall be limited to taking all steps necessary in the defense or settlement of such Claim resulting therefrom and to holding the Aggrieved Party harmless to the extent required under Section 9.1 hereof, from and against any and all Losses caused by or arising out of any settlement approved by the Indemnifying Party or any judgment in connection with such Claim resulting therefrom. The Aggrieved Party may participate, at its expense, in the defense of such Claim, provided that the Indemnifying Party shall direct and make available control the defense of such Claim. The Indemnifying Party shall not, in the defense of such Claim resulting therefrom, consent to entry of any judgment, except with the written consent of the Aggrieved Party, or enter into any settlement, except with the written consent of the Aggrieved Party, which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Aggrieved Party of a release from all liability in respect of such Claim. All awards and costs payable by a third party to the Aggrieved Party or the Indemnifying Party shall belong to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. .
(b) If the Indemnifying Party assumes shall not assume the defense of any Third Party Claimsuch Claim resulting therefrom, the Indemnified Aggrieved Party shall agree to any settlementmay defend against such Claim in such manner as it may deem appropriate and, compromise or discharge of such Third Party Claim that unless the Indemnifying Party shall deposit with the Aggrieved Party a sum equivalent to the total amount demanded in such Claim, but not in excess of the amounts required pursuant to Section 9.1, or shall deliver to the Aggrieved Party a surety bond in form and substance reasonably satisfactory to the Aggrieved Party, but not for more than the amounts required pursuant to Section 9.1, the Aggrieved Party may recommend settle such Claim on such terms as it may deem appropriate, and that by its terms obligates the Indemnifying Party to pay shall promptly reimburse the full Aggrieved Party for the amount of all expenses, legal or otherwise, incurred by the liability Aggrieved Party in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice settlement of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except Claim to the extent that provided in Section 9.1 hereof. If no settlement of such Claim is made, the *Portions of this document have been intentionally omitted and filed separately with the Commission pursuant to a request for confidential treatment. 72 Indemnifying Party is prejudiced shall promptly reimburse the Aggrieved Party for the amount of any judgment rendered with respect to such Claim and of all expenses, legal or otherwise, incurred by the Aggrieved Party in the defense against such failureClaim, to the extent so required pursuant to Section 9.1 hereof.
Appears in 1 contract
Procedures. (a) In order If the Sellers or the Buyer or the Company shall have incurred any Damages for a Purchaser Indemnitee or Company Indemnitee which such Party wishes to seek indemnity under this Article 6 (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), then such Indemnified Party shall deliver notice thereof to will notify the party against whom indemnity is sought other Party in writing (the “Indemnifying Party”), within sixty (60) promptly after receipt by days from the date either such Indemnified Party (or in the case of written notice a Party which is an entity, a responsible officer) has Knowledge of the Third Party subject Damage, specifying in reasonable detail the nature of such Damages and the amount or the estimated amount thereof to the extent then known (which estimate will not be conclusive of the final amount of such Damages) (the “Claim in accordance with Section 10.6. The failure to provide such noticeNotice”); provided, however, shall that any delay or failure to notify the Indemnifying Party will not release relieve the Indemnifying Party from any of its obligations liability it may have to the Indemnified Party under this Article 10 except 6 unless, and only to the extent that that, such delay or failure to notify prejudices the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement hereunder or instrument entered into between Purchaser and the Companyincreases its indemnity obligations hereunder.
(b) The Indemnifying Party shall have the right, upon written notice to If the Indemnified Party within 30 days of receipt of notice has a claim against the Indemnifying Party directly that does not involve a claim by a third party asserted against or sought to be collected from the Indemnified Party, the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of shall give the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory reasonable access during normal business hours to the books, records and assets of the Indemnified PartyParty which evidence or support such claim or the act, omission or occurrence giving rise to such claim. If the Indemnifying Party assumes the defense of such Third Party Claim, does not notify in writing the Indemnified Party shall have within sixty (60) days from the right to employ separate counsel and to participate in date on which the defense thereofClaim Notice is duly given (the “Notice Period”) disputing such claim, but then the fees and expenses Indemnifying Party will be liable for the amount of such counsel shall any Damages that may arise therefrom or be at the expense of the Indemnified Partyrelated thereto. If the Indemnifying Party assumes notifies in writing the defense of any Third Indemnified Party Claimwithin the Notice Period, the Indemnifying Party and the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available proceed to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge negotiate a resolution of such 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 Claimdispute and, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or if not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or dischargeresolved through negotiations, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent dispute shall not be unreasonably withheld)resolved according to Section 8.2.
(c) In If the event any Indemnified Party should have has a claim against any the Indemnifying Party hereunder that does not involve involves a Third Party Claim claim or demand being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice by a third party that if prosecuted successfully would be a matter for which such Indemnified Party is entitled to indemnification under this Article 6, then the claims for indemnification by the Indemnified Party will be asserted and resolved as follows:
(i) The Indemnified Party will send a Claim Notice with respect to such claim to the Indemnifying Party as promptly as practicable following the receipt by the Indemnified Party of such claim in accordance with Section 10.6. The failure to provide such noticeor demand; provided, however, shall that the failure to notify the Indemnifying Party will not release relieve the Indemnifying Party from any liability it may have to the Indemnified Party under this Article 6 unless, and only to the extent that, such failure to notify prejudices the Indemnifying Party hereunder or increases its indemnity obligations.
(ii) The Indemnifying Party will notify the Indemnified Party within the Notice Period (A) whether or not the Indemnifying Party disputes its liability to the Indemnified Party hereunder with respect to such claim or demand and (B) whether or not the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against such claim or demand. If the Indemnifying Party does not notify the Indemnified Party in writing within the Notice Period that the Indemnifying Party disputes its liability to the Indemnified Party, then the Indemnified Party may undertake the defense, compromise and settlement of such claim or demand in any manner which the Indemnified Party deems is reasonable with counsel of its own choosing. Unless the Indemnifying Party has failed to fulfill its obligations under this Article 10 except to 6, no admission of liability or settlement by the extent Indemnified Party of a third party claim or demand will be made without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
(iii) If the Indemnifying Party notifies the Indemnified Party within the Notice Period that the Indemnifying Party is prejudiced desires to defend the Indemnified Party against such claim or demand, then, except as provided below, the Indemnifying Party shall have the right to defend (at its sole cost and expense) the Indemnified Party by appropriate proceedings and utilizing legal counsel reasonably acceptable to the Indemnified Party, will use commercially reasonable efforts to settle or prosecute such failureproceedings to a final conclusion in such a manner as to avoid any risk of the Indemnified Party becoming subject to any injunctive or other equitable order for relief or to liability for any other matter, and will control the conduct of such defense; provided, however, that the Indemnifying Party will not be entitled to assume the defense of any such proceeding unless the Indemnifying Party has accepted and assumed in writing the Indemnifying Party’s obligation to indemnify the Indemnified Party with respect to Damages arising from or relating to such proceeding, and that the Indemnifying Party will not, without the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld, conditioned or delayed), consent to the entry of any judgment against the Indemnified Party or enter into any settlement or compromise that does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release (in form and substance reasonably satisfactory to the Indemnifying Party) from all liability in respect of such claim or litigation. Furthermore, the Indemnifying Party will not be entitled to assume the defense of any proceeding if the claim seeks any relief other than money damages, including any type of injunctive or other equitable relief. If the Indemnifying Party assumes the defense, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof provided that if the defendants in any such claim or demand include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party will have reasonably concluded that there may be legal defenses or rights available to the Indemnified Party that are different from, in actual or potential conflict with, or additional to those available to the Indemnifying Party, then the Indemnified Party will have the right to select one law firm to act at the Indemnifying Party’s expense as separate counsel on behalf of the Indemnified Party. In addition, if the Indemnified Party desires to participate in, but not control, any defense or settlement, it may do so at its sole cost and expense, including, but not limited to, by having one or more of its representatives present at any and all meetings and participating in any and all communications (whether oral or written) with any Governmental Entity or other third party in relation to any such claim or demand. Prior to undertaking the defense of any claim or demand, the Indemnifying Party’s selection of legal counsel and/or tax advisors assisting it with the defense of any such claim or demand shall first be approved by the Indemnified Party, which approval shall not be unreasonably withheld, conditioned or delayed.
(iv) Before the Indemnifying Party settles any claim or demand the defense of which it has assumed control, the Indemnifying Party will obtain the Indemnified Party’s approval, confirmed in writing in accordance with the notice provisions hereof, which approval will not be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Share Purchase Agreement (Turbine Truck Engines Inc)
Procedures. Claims for indemnification under this Article IX shall be asserted and resolved as follows:
(a) In order for a Purchaser Any Buyer Indemnitee or Company Seller Indemnitee claiming indemnification under this Article IX (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as claim (other than a result of a Indemnified Liability or a claim or demand made by any Person Tax Claim) asserted against the Indemnified Party by a third party (a “Third Party Claim”), such Indemnified Party ) in respect of any matter that is subject to indemnification under Section 9.02 shall deliver provide prompt written notice thereof (a “Claim Notice”) to the party against whom indemnity is sought other Party (the “Indemnifying Party”) promptly after receipt of the Third Party Claim. A Claim Notice shall describe in reasonable detail the facts constituting the basis for such third-party claim and the amount of the potential Damages, in each case, to the extent known. Failure to notify the Indemnifying Party in accordance with this Section 9.03(a) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party, except to the extent (1) the Indemnifying Party is actually and materially prejudiced by the Indemnified Party’s failure to give such notice or (2) the Indemnified Party fails to notify the Indemnifying Party of written notice of the such Third Party Claim in accordance with this Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except 9.03(a) on or prior to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Companyapplicable Survival Expiration Date.
(b) The Subject to the participation rights of the R&W Insurer under the terms of the R&W Insurance Policy, an Indemnifying Party may elect, at its option and expense, to assume and thereafter conduct the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice (which shall be reasonably acceptable to the Indemnified Party) if the Indemnifying Party provides the Indemnified Party with written notice of such election within thirty (30) days of the date the Indemnifying Party receives notice of such Third Party Claim; provided, however, that:
(i) the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such Third Party Claim;
(ii) the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement or compromise of, admitting any Liability with respect to, or discharging, such Third Party Claim (unless such settlement or compromise is solely for monetary damages that are indemnified in full by the Indemnifying Party and such settlement or compromise does not involve any admission of guilt); and
(iii) no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof a release from all Liability of each Indemnified Party given by each claimant or plaintiff with respect to such Third Party Claim.
(c) Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the rightdefense or settlement any Third Party Claim if (i) the Third Party Claim seeks an order, upon written injunction, non-monetary or other equitable relief against the Indemnified Party; (ii) is reasonably likely to involve a conflict of interest between the Indemnified Party and the Indemnifying Party (as determined based on the advice of counsel to the Indemnified Party); (iii) the claim for indemnification involves a customer or other Person with whom the Indemnified Party or its Affiliates has a strategic relationship; (iv) in the event the Third Party Claim were to be unfavorably decided, such Third Party Claim would be reasonably likely to impose material Liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; (v) in the event the Third Party Claim were to be unfavorably decided, the Indemnified Party would be reasonably likely to be liable for Damages greater than the amount reasonably expected to be received from the Indemnifying Party; or (vi) the Third Party Claim involves a criminal proceeding, action, indictment, allegation or investigation.
(d) If the Indemnified Party gives an Indemnifying Party notice of a Third Party Claim and the Indemnifying Party is not entitled to assume the defense of the Third Party Claim or does not, within thirty (30) days after such notice is given, (i) give notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, its election to assume the defense thereof at the expense of the Indemnifying Third Party with counsel selected by the Indemnifying Party Claim and reasonably satisfactory to (ii) thereafter promptly assume such defense, then the Indemnified Party. If the Indemnifying Party assumes may conduct the defense of such Third Party Claim; provided, however, that the Indemnified Party shall have will not enter into any settlement or compromise with respect to such Third Party Claim without the right prior written consent of the Indemnifying Party, such consent not to employ separate counsel and to participate in be unreasonably withheld, conditioned or delayed, unless the defense thereof, but the fees and expenses terms of such counsel settlement or compromise provide for a complete release of the claims that are the subject of such Third Party Claim in favor of the Indemnifying Party.
(e) A claim for indemnification pursuant to this Article IX for any matter not involving a Third Party Claim shall be at promptly asserted by the expense Indemnified Party to the Indemnifying Party in writing, setting forth in reasonable detail the obligation with respect to which the claim is made, the facts giving rise to and the alleged basis for such claim and, if known or reasonably ascertainable, the amount of Damages asserted or which may be asserted by reason thereof. Failure to notify the Indemnifying Party in accordance with this Section 9.03(e) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party. , except to the extent (1) the Indemnifying Party is actually and material prejudiced by the Indemnified Party’s failure to give such notice or (2) the Indemnified Party fails to notify the Indemnifying Party of such Third Party Claim in accordance with this Section 9.03(e) on or prior to the applicable Survival Expiration Date.
(f) If the Indemnifying Party assumes control of the defense of any Third Party ClaimClaim in accordance with this Section 9.03, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all such witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required requested by the Indemnifying Party during normal business hours and upon reasonable advance notice at the Indemnifying Party’s cost and expense. If the Indemnifying Party assumes does not (or is not entitled to) assume control of the defense of any Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably requested by the Indemnified Party during normal business hours and upon reasonable advance notice at the Indemnifying Party’s cost and expense. All such access shall agree be granted under conditions which shall not unreasonably interfere with the business and operations of the applicable party providing such access. If the Indemnifying Party assumes control of the defense of any Third Party Claim in accordance with this Section 9.03, the Indemnifying Party shall (A) keep the Indemnified Party apprised of all material developments and allow the Indemnified Party to any settlementparticipate in such defense, compromise or discharge (B) not withdraw from the defense of such Third Party Claim that without providing advance written notice to the Indemnifying Indemnified Party may recommend and that by its terms obligates reasonably sufficient to allow the Indemnifying Indemnified Party to pay prepare to reassume the full amount defense of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes (C) conduct the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)actively and diligently.
(cg) In For the event avoidance of doubt, Article VI and not this Section 9.03 shall govern the conduct of any Indemnified Party should have a claim against Tax Claim.
(h) Notwithstanding anything to the contrary contained herein, the control of the defense and settlement of any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to for which a Buyer Indemnitee is solely seeking recovery under the R&W Insurance Policy shall be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except subject to the extent that provisions of the Indemnifying Party is prejudiced by such failureR&W Insurance Policy.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Modine Manufacturing Co)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”), shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) to be entitled to in writing of any indemnification provided for under this Agreement as a result of a Indemnified Liability pending or a threatened claim or demand made that the Indemnified Party has determined has given or would reasonably be expected to give rise to such right of indemnification (including a pending or threatened claim or demand asserted by any Person a third party against the Indemnified Party (Party, such claim being a “Third Party Claim”), such Indemnified Party shall deliver notice thereof describing in reasonable detail the facts and circumstances with respect to the party against whom indemnity is sought subject matter of such claim or demand (to the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of extent then known); provided that the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is actually prejudiced by such failure. For , it being agreed that notices for claims in respect of a breach of a representation, warranty, covenant or agreement must be delivered prior to the avoidance expiration of doubtany applicable survival period specified in Section 9.1 for such representation, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representationswarranty, warranties and covenants under this Agreement and shall not apply to any other agreement covenant or instrument entered into between Purchaser and the Companyagreement.
(b) The Subject to the provisions of this Section 9.4, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimat its sole expense, to assume the defense thereof at the expense be represented by counsel of the Indemnifying Party with counsel selected by the Indemnifying Party and its choice, which must be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such and to defend against, negotiate, settle or otherwise deal with any Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes or otherwise assume the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available which relates to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required any Losses alleged to be indemnifiable by the Indemnifying Partyit hereunder. If the Indemnifying Party assumes elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim, or otherwise assume the defense of any Third Party Claim, which relates to any Losses alleged to be indemnifiable by it hereunder, it shall, within twenty (20) days of the Indemnified Party shall agree to any settlement, compromise or discharge Party’s written notice of the assertion of such Third Party Claim pursuant to Section 9.4(a), notify the Indemnified Party of its intent to do so; provided that the Indemnifying Party may recommend and that by must conduct its terms obligates defense of the Third Party Claim reasonably diligently thereafter in order to preserve its rights in this regard. If the Indemnifying Party elects not to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.defend against,
Appears in 1 contract
Sources: MSW Transaction Agreement (FMC Corp)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought Securityholder Representative, on behalf of the Holders, Optionholders and Warrantholder, or to the Parent, as applicable (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend any such Third Party Claim. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim and, in any such case, shall (x) keep the Securityholder Representative informed of all material developments relating to such Third Party Claim and (y) promptly provide to the Securityholder Representative copies of all pleadings, notices and communications with respect to such Third Party Claim to the extent that receipt of such documents does not waive any privilege. Notwithstanding anything to the contrary in this Agreement, in the event that the defense of any Third Party Claim is conducted by the Indemnified Party in accordance with this Section 8.4(b), the Indemnified Party shall not consent to the entry of any judgment or enter into any settlement or compromise of such Third Party Claim without the prior written consent of the Securityholder Representative (it being understood and agreed that the Securityholder Representative may withhold consent to any requested settlement if the Securityholder Representative believes in good faith that there is not any underlying basis for indemnification under Section 8.2 with respect to such settlement and absent such consent, the mere existence of such Third Party Claim shall not be deemed indicative of the existence or amount of indemnifiable Losses relating to such Third Party Claim). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such 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 which releases or (C) imposes equitable remedies or any obligation on the Indemnified Party completely other than solely the payment of money damages for which the Indemnified Party will be fully indemnified hereunder.
(c) Subject to the limitations set forth herein, the indemnification required hereunder in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense respect of a Third Party ClaimClaim shall be made by prompt payment by the Escrow Agent (to the extent of any amounts then held in the Escrow Fund if applicable) or the Indemnifying Party (to the extent of any amounts not then held in the Escrow Fund if applicable) of the amount of actual Losses in connection therewith only to the extent such Losses have been determined to be indemnifiable Losses hereunder pursuant to the terms hereof, the Indemnified including that any dispute regarding such characterization has been resolved according to Section 10.10.
(d) The Indemnifying Party shall not admit be entitled to require that any liability with respect to, action be made or settle, compromise brought against any other Person before action is brought or discharge, or offer to settle, compromise or discharge, such Third Party Claim without claim is made against it hereunder by the Indemnifying Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld).
(ce) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
Appears in 1 contract
Sources: Merger Agreement (AOL Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly Promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of any action against any Person in respect of which indemnification ("Indemnification") may be sought hereunder, the Person receiving such Third notice shall notify the Indemnifying Party Claimin writing of the commencement thereof and the basis hereunder upon which a claim for Indemnification is asserted. In the event of the commencement of any such action as to which the Indemnified Party notifies the Indemnifying Party as aforesaid, the Indemnifying Party will be entitled to participate therein and to assume the defense thereof at the expense of Indemnifying Party's expense, provided that the Indemnifying Party promptly notifies the Indemnified Party of such election to assume the defense thereof and acknowledges the Indemnifying Party's Indemnification Obligations pursuant to this Agreement in writing to the Indemnified Party, and provided further that the Indemnifying Party's interest in such action does not conflict with the interests of the Indemnified Party, the relief sought does not exceed the Indemnifying Party's maximum Indemnification Obligations under Section 11.5, and that equitable relief is not being sought. Except as provided in Section 13.6, nothing herein shall be construed to create any rights enforceable by any Person not a party to this Agreement.
(b) The Indemnified Party shall be entitled to participate in the defense of any action and to be represented at its expense by counsel of its own selection. If, however, the Indemnifying Party's interest in such action conflicts with the interests of the Indemnified Party, or the relief sought exceeds the Indemnifying Party's maximum Indemnification Obligations under Section 11.5, or if equitable relief is being sought against Merger Subsidiary or the Stockholders, then the Indemnified Party shall assume such defense at the Indemnifying Party's expense. If the attorneys provided for the defense of the Indemnified Party by the Indemnifying Party withdraw from or are removed by court order from the Indemnified Party's representation, then the cost of counsel selected by the Indemnifying Indemnified Party and reasonably satisfactory to shall be part of the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim's Damages, and the Indemnified Party shall have the right in all respects to employ separate counsel and to participate in conduct its own defense. If the defense thereofIndemnified Party otherwise retains its own counsel, but the fees and expenses of such counsel cost thereof shall be at for the expense account of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In As to cases in which the event any Indemnifying Party has assumed and is providing the defense for the Indemnified Party should have under Section 11.3(a), the control of such defense and the right to reach settlement in such action shall be vested in the Indemnifying Party; provided, that if the Indemnified Party objects to a claim against any settlement which has otherwise been fully agreed to by the Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release may nevertheless prohibit the Indemnifying Party from any of its obligations under this Article 10 except to the extent that making such settlement, in which case the Indemnifying Party shall pay to the Indemnified Party the proposed cost to the Indemnifying Party of such settlement (plus any other sum to satisfy the Indemnifying Party's Indemnification Obligations to the Indemnified Party as provided by and contemplated in this Article 11) (together, the "Settlement Cost"), in cash, and the Indemnified Party shall thereafter be responsible for such matter and the Indemnifying Party shall have no further Indemnification Obligations with respect to such matter and shall be indemnified by the Indemnified Party for any loss or liability in excess of the Settlement Cost imposed on the Indemnifying Party by any later settlement or adjudication; provided further, that if the Indemnified Party objects to the continuation of any such action by the Indemnifying Party, the Indemnified Party may direct the Indemnifying Party to settle such case, the cost of which shall be paid by the Indemnified Party, and the Indemnifying Party shall have no further Indemnification Obligations for such settled matter other than litigation costs and professional fees incurred by the Indemnifying Party therein. As to any action, the party which is prejudiced by controlling such failureaction shall provide to the other party reasonable information (including reasonable advance notice of all proceedings in respect thereto) regarding the conduct of the action and the right to attend all proceedings and depositions in respect thereto through its agents and attorneys, and the right to discuss the action with counsel for the party controlling such action.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A party claiming indemnification hereunder (the an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to promptly give the party against from whom indemnity indemnification is sought (the an “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of any matter which an Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, stating in reasonable detail to the Third Party Claim extent known, (i) the basis for any such claim for indemnification, (ii) the amount of the Loss and the method of computation thereof, (iii) and containing a reference to the provisions of this Agreement in accordance with Section 10.6. The respect of which such right of indemnification is claimed or arises; provided that the failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 XII except to the extent that such failure actually materially prejudices the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyParty.
(b) The Indemnifying If an Indemnified Party shall have the right, upon written receive notice of any claim of a third party that would give rise to the Indemnified Party within 30 days a right of receipt of notice from the Indemnified Party of the commencement of such indemnification hereunder (a “Third Party Claim”), to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, then the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If give the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge written notice of such Third Party Claim (stating in reasonable detail the basis for claiming such right of indemnification); provided 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 XII except to the extent that such failure actually materially prejudices the Indemnifying Party. In the event of a Third Party Claim, the Indemnifying Party may elect to assume the defense of such Third Party Claim and elect to retain counsel of its choice, reasonably acceptable to the relevant Indemnified Parties, to represent such Indemnified Parties in connection with such Proceeding and shall pay the fees, charges and disbursements of such counsel and other defense costs. The Indemnified Parties may participate, at their own expense and through legal counsel of their choice, in any such Proceeding; provided that (i) the Indemnifying Party shall have the right to defend such Third Party Claim by all appropriate proceedings and, so long as it diligently pursues such defense, shall have full control of such defense and such proceedings, and (ii) the Indemnified Parties and their counsel shall cooperate with the Indemnifying Party and its counsel in connection with such Proceeding. The Indemnifying Party shall not settle any such Proceeding without the relevant Indemnified Parties’ prior written consent (which shall not be unreasonably withheld or delayed), unless the terms of such settlement contain a complete and unconditional release of the Indemnified Party of any Liability.
(c) Notwithstanding the foregoing, if (i) the Indemnifying Party elects not to assume control of such defense, (ii) both the Indemnifying Party and any Indemnified Party are parties to or subjects of such claim and conflicts of interests exist between the Indemnifying Party and such Indemnified Party, or (iii) the claim is prejudiced reasonably likely to establish a precedential custom or practice that is detrimental to the continuing business interests of the Indemnified Party, then the Indemnified Parties may retain counsel reasonably acceptable to the Indemnifying Party in connection with such claim and assume control of the defense in connection with such claim, and the fees, charges and disbursements of no more than one such counsel per jurisdiction selected by the Indemnified Parties shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party have any Liability in connection with any settlement of any Proceeding that is entered into without its prior written consent (which shall not be unreasonably withheld or delayed). Notwithstanding any other provisions of this Article XII and regardless of whether it is an Indemnified Party or Indemnifying Party, Purchaser shall have the right to assume the full control of defense against any claim giving rise to a right of indemnification under this Agreement that relates to any Losses relating to or arising from the period subsequent to the date hereof (a “Post-Signing Claim”) and may elect to retain counsel of its choice reasonably acceptable to the Seller Parties, so long as Purchaser diligently pursues such failuredefense. The fees, charges and disbursements of no more than one such counsel per jurisdiction selected by Purchaser with respect to any such Post-Signing Claim shall be reimbursed by the Indemnifying Party.
(d) If there is a litigation or proceeding at any time that concerns the Acquired Business or Transferred Assets before the Closing Date and a notice of claim in accordance with Section 12.3(a) or Section 12.3(b), as the case may be, is not submitted with respect to such litigation or proceeding, then, at the reasonable request of Purchaser, the Seller Parties shall make the employees of the Seller Parties and their Subsidiaries available to cooperate with Purchaser and its Affiliates (including by making such employees available to provide information, discovery and testimony), to the extent reasonable and without interrupting the business or operations of the party receiving such request and of its Subsidiaries, in each case solely for purposes of permitting the preparation for, defense of and participation in such litigation or proceeding by any of the requesting party, its Affiliates or their respective agents, directors, officers and employees; provided that the requesting party shall reimburse all reasonable out-of-pocket expenses incurred by the party receiving such request, its Affiliates and their respective agents, directors, officers and employees in complying with this undertaking and, since such payments, if any, will not be made pursuant to an indemnity claim, such payments shall not be taken into account for purposes of the limitations set forth in Section 12.1 or Section 12.2.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee an Acquiror Indemnified Party or Company Indemnitee the Stockholder Indemnified Parties, as the case may be (the each, an “Indemnified Party”) ), to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any third Person against the such Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought Company Stockholder Representative, on behalf of the Stockholder Indemnified Parties, or Acquiror, as the case may be (the each, an “Indemnifying Party”), within thirty (30) promptly days after receipt by such Indemnified Party of written notice of the Third Party Claim and shall be in accordance writing, shall specify in reasonable detail the basis for such Third Party Claim, the facts pertaining thereto and, if known and quantifiable, the amount thereof, and in addition thereto provide the Indemnifying Party with Section 10.6. The such information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that the failure to provide such notice, however, notice within such thirty (30) day period shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party pursuant to the terms of this Agreement against all Losses that may result from a Third Party Claim, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days fifteen (15) Business Days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (in the case of the Company Stockholder Representative, solely on behalf of the Company Holders) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (i) if the Third Party Claim involves a purported class action, (ii) if any Governmental Authority is the plaintiff in such Third Party Claim, (iii) if the Indemnified Party reasonably determines that such claim would reasonably be expected to exceed the indemnification limitations set forth in Section 9.04, or (iv) for equitable or injunctive relief or any claim that would impose criminal liability or criminal damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party, any such Third Party Claim. If the Indemnifying Party does not elect to assume the defense of such Third Party Claim or, after assuming such defense, fails to diligently defend such Third Party Claim, the Indemnified Party shall have the right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and the Indemnified Party would present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any such Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense (in the case of the Company Stockholder Representative, solely on behalf of the Company Holders), cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party, and shall be entitled reasonably to consult with the Indemnifying Party with respect to such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of such Third Party Claim that wrongdoing, (B) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the Indemnified Party and its Affiliates from all liability in connection with respect of such Third Party Claim, and which releases or (C) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third Party Claim. Whether or not other than solely the Indemnifying Party assumes the defense payment of a Third Party Claim, money damages for which the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not will be unreasonably withheld)fully indemnified hereunder.
(c) In the event any Indemnified Party should have a claim against any the Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall shall, after becoming aware of such claim, deliver notice of such claim within thirty (30) days of becoming so aware to the Indemnifying Party, which notice shall be in accordance with Section 10.6. The writing, shall specify in reasonable detail the basis for such claim, the facts pertaining thereto and, if known and quantifiable, the amount thereof; provided, however, that the failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 IX except to the extent that the Indemnifying Party is are materially prejudiced by such failure. If the Indemnifying Party does not notify the Indemnified Party within fifteen (15) Business Days of its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party (not the Company Stockholder Representative) shall pay the amount of such liability to the Indemnified Party on demand in accordance with Section 9.04. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that they are obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party (not the Company Stockholder Representative) shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee A Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the each, an “Indemnified Party”) to be entitled to any shall make each claim for indemnification provided for under this Agreement as or any Ancillary Agreement in respect of, arising out of or involving a result of a Indemnified Liability or Loss, including with respect to a claim or demand made by any Person other than Buyer, Sellers or their respective Affiliates (a “Third Party”) against the such Indemnified Party (a “Third Party Claim”), by delivering written notice of such Indemnified Party shall deliver notice thereof indemnification claim to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after becoming aware of the Loss (if the claim is unrelated to a Third Party Claim) or promptly after receipt by such Indemnified Party of written notice of the Third Party Claim (if the claim relates to a Third Party Claim). Such notice shall describe in accordance reasonable detail the facts and circumstances giving rise to any claim for indemnification hereunder, the amount and the method of computation of the amount of such claim (if known) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VI except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party ClaimParty, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, however, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall reasonably cooperate with the Indemnifying Party in such defense and and, subject to Section 5.2(b), make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, which may be granted or withheld in the Indemnifying Party’s sole discretion. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, which may be granted or withheld in the Indemnified Party’s sole discretion, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (which i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party, or (iv) any monetary liability of the Indemnified Party that shall not be unreasonably withheld)promptly paid or reimbursed by the Indemnifying Party. Notwithstanding anything in this Section 6.4(b) to the contrary, Sellers shall control the defense and settlement of any audit or Action relating to the Tax Returns for Sellers for all Pre-Closing Tax Periods.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim promptly to the Indemnifying Party, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VI except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters.
Appears in 1 contract
Procedures. (ai) In order for If a Purchaser Indemnitee or Company Indemnitee Person seeking indemnification under this Section 9.03 (the “Indemnified Party”) to be entitled to receives written notice of the assertion or commencement of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by Third Party Claim against any Person against the Indemnified Party with respect to which the Seller or Buyer, as applicable (a “Third Party Claim”)each, in such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the capacity, an “Indemnifying Party”), may be liable for indemnification under this Section 9.03, Indemnified Party shall give Indemnifying Party written notice thereof within thirty (30) promptly days after receipt by such Indemnified Party of written notice of the Third such Third-Party Claim in accordance with Section 10.6Claim. The failure to provide give such noticewritten notice shall not, however, shall not release the relieve Indemnifying Party from any of its obligations under this Article 10 indemnification obligations, except and only to the extent that the such Indemnifying Party forfeits rights or defenses or is otherwise prejudiced by reason of such failure. For the avoidance Such notice by Indemnified Party shall include copies of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only all material written documents pursuant to breaches of representations, warranties and covenants under this Agreement which such Third-Party Claim has been made to Indemnified Party and shall not apply indicate the estimated amount of the Damages that has been or may be sustained by Indemnified Party in connection therewith, to any other agreement or instrument entered into between Purchaser and the Company.
(b) The extent specified in the foregoing documents. Indemnifying Party shall shall, at its option, have the rightright to participate in, upon or by giving written notice to the Indemnified Party within 30 twenty (20) days of after receipt of the notice from the Indemnified Party of the commencement of relating to such Third Third-Party Claim, Claim to assume the defense thereof of, any Third-Party Claim at Indemnifying Party’s expense and by Indemnifying Party’s own counsel; provided that (1) the expense of the Third-Party Claim seeks (and continues to seek) solely monetary damages, (2) Indemnifying Party expressly agrees, in its notice assuming such defense, to be fully responsible for all Damages relating to such Third-Party Claim and the amount of indemnification available to Indemnified Party under Section 9.03(a) or Section 9.03(b), and (3) the Third-Party Claim does not relate to or arise in connection with counsel selected by any criminal or quasi criminal proceeding, allegation or investigation (the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claimconditions set forth in clauses (1) through (3) are, collectively, the Indemnified Party shall have “Litigation Conditions”). In the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the event an Indemnifying Party assumes the defense of any Third Third-Party Claim, subject to Section 9.03(d)(ii), (x) it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of Indemnified Party and (y) Indemnified Party shall cooperate with have the Indemnifying Party right, at its own cost and expense, to fully participate in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim with counsel selected by it (including by being provided copies of, and a right to review and comment on, all material correspondence and the right to participate in all meetings and conference calls); provided, however, if there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have one counsel for Indemnified Party and Indemnifying Party, the fees and expenses of separate counsel for Indemnified Party shall be Damages subject to the indemnification provisions of this Section 9.03 (including the limitations set forth herein). If (A) Indemnifying Party elects not to defend such Third-Party Claim, (B) any of the Litigation Conditions ceases to be met or (C) Indemnifying Party fails to employ counsel reasonably acceptable to Indemnified Party shall agree to any settlement, compromise or discharge within a reasonable period of time after receiving notice of such Third Third-Party Claim that the Indemnifying from Indemnified Party, then Indemnified Party may recommend (in good faith consultation with Indemnifying Party) settle or defend such Third-Party Claim and that by its terms obligates the Indemnifying Party seek indemnification for any and all Damages based upon, arising from or relating to pay the full amount of the liability in connection with such Third Third-Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim; provided that, the Indemnified Party shall not settle, adjust or compromise such matter, or admit any liability with respect toto such matter, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (of Indemnifying Party, which consent shall not be unreasonably withheld), conditioned or delayed. Indemnified Party and Indemnifying Party shall keep each other reasonably informed of the status of any Third-Party Claim at all stages thereof where such Person is not represented by its own counsel and will cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records to the extent relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim; provided that Indemnified Party and Indemnifying Party agree to reasonably cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential information disclosed or exchanged in connection with such claim and the attorney-client and work-product privileges.
(cii) In the event Notwithstanding any Indemnified Party should have a claim against any other provision of this Agreement, no Indemnifying Party hereunder that does not involve shall enter into any settlement of a Third Third-Party Claim being asserted against or sought to be collected from such without the prior written consent of the applicable Indemnified Party, except as provided in this Section 9.03(d)(ii). No Indemnifying Party may, without the prior written consent of the applicable Indemnified Party, consent to a settlement of, or the entry of any judgment arising from, any such Third-Party Claim that (1) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to each Indemnified Party shall deliver notice of an unconditional release from all liability in respect of such Third-Party Claim, (2) grants any relief other than monetary damages that are paid in full by Indemnifying Party, (3) may reasonably be expected to have a materially adverse effect on the business of Indemnified Party or any of its Affiliates, (4) is a claim in accordance with Section 10.6for Taxes or (5) includes any finding or admission of any wrongdoing, violation of Applicable Law or violation of the rights of any third party by Indemnified Party or any of its Affiliates. The failure If a settlement offer is made to provide settle a Third-Party Claim that would not require prior written consent of Indemnified Party pursuant to the immediately preceding sentence and Indemnifying Party desires to accept and agree to such offer, Indemnifying Party shall give written notice to that effect to Indemnified Party. If Indemnified Party fails to consent to such settlement offer within ten (10) days after its receipt of such notice, howeverIndemnified Party may assume the defense and continue to contest or defend such Third-Party Claim and in such event, shall not release the maximum liability of the Indemnifying Party from any as to such Third-Party Claim shall not exceed the amount of such settlement offer. If Indemnified Party fails to consent to such settlement offer and also fails to assume defense of such Third-Party Claim within ten (10) days after its obligations under this Article 10 except to the extent that receipt of such notice, the Indemnifying Party is prejudiced by may settle the Third- Party Claim upon the terms set forth in such failureoffer to settle such Third-Party Claim.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Advance Auto Parts Inc)
Procedures. (a) In order for a Purchaser Indemnitee If any Indemnified Party receives notice of the assertion or Company Indemnitee (the “Indemnified Party”) to be entitled to commencement of any indemnification provided for under this Agreement as a result of a Indemnified Liability Action made or a claim or demand made brought by any Person against who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the Indemnified Party foregoing (a “Third Party Claim”), ) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall deliver give the Indemnifying Party reasonably prompt written notice thereof to the party against whom indemnity is sought thereof, but in any event not later than twenty (the “Indemnifying Party”20) promptly Business Days after receipt by of such Indemnified Party of written notice of the such Third Party Claim in accordance with Section 10.6Claim. The failure to provide give such noticeprompt written notice shall not, however, shall not release relieve the Indemnifying Party from any of its obligations under this Article 10 indemnification obligations, except and only to the extent that the Indemnifying Party is prejudiced forfeits rights or defenses by reason of such failure. For Such notice by the avoidance Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement all material written evidence thereof and shall not apply to any other agreement indicate the estimated amount, if reasonably practicable, of the Loss that has been or instrument entered into between Purchaser and may be sustained by the Company.
(b) Indemnified Party. The Indemnifying Party shall have the rightright to participate in, upon or by giving written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party ClaimParty, to assume the defense thereof of any Third Party Claim at the Indemnifying Party’s expense of and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party with counsel selected by the is Sellers, such Indemnifying Party and reasonably satisfactory shall not have the right to defend or direct the defense of any such Third Party Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of New Rise SAF or any Governmental Authority, or (y) seeks an injunction or other equitable relief against the Indemnified Party. If In the event that the Indemnifying Party assumes the defense of such any Third Party Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to employ separate counsel and to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof, but the . The fees and expenses disbursements of such counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party assumes elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise, or defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Sellers and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, the Indemnified including making available records relating to such Third Party shall cooperate with the Indemnifying Party in such defense Claim and make available furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the Indemnifying Party all witnessesdefending party, pertinent records, materials and information in management employees of the Indemnified Party’s possession or under non-defending party as may be reasonably necessary for the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes preparation of the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Focus Impact BH3 NewCo, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought Stockholder Agent, on behalf of the Stockholders, and the individual Stockholder where the matter relates to a breach of such Stockholder’s representations, warranties or covenants in Article I of the Stockholder Agreement, or to Acquiror, as applicable (the “Indemnifying Party”) ), and in each case to the Escrow Agent, promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubtIf any insurance carrier is obligated or agrees to defend any Third Party Claim in connection with any attempt to obtain insurance coverage with respect to such Third Party Claim, the indemnification provisions and procedures contained in this Article 10 such defense shall apply only be tendered to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser such insurance carrier and the Companyrights of the parties among themselves regarding the assumption and control of such defense shall, as among one another, be subject to the requirements of such insurance carrier.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against Losses that may result from a Third Party Claim pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of wrongdoing, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all liability in respect of such Third Party Claim that or (C) imposes equitable remedies or any obligation on the Indemnifying Indemnified Party other than solely the payment of money damages for which the Indemnified Party will be indemnified hereunder. The Indemnified Party may recommend and that by its terms obligates agree to any monetary settlement of, or the Indemnifying Party to pay the full amount entry of the liability in connection with any judgment arising from, any such Third Party Claim, and but in the absence of the written consent of the Indemnifying Party, which releases shall not be unreasonably withheld, conditioned or delayed, no settlement shall be determinative of the amount of Losses an Indemnified Party completely is entitled to recover pursuant to this Article VIII. The non-controlling party may participate in connection such defense at its own expense. The controlling party shall keep the non-controlling parties advised of the status of such Third Party Claim and the defense thereof. The non-controlling parties shall reasonably cooperate with and assist the controlling party in the defense of such Third Party Claim. Whether or not The fees and expenses of counsel to the Indemnifying Indemnified Party assumes the defense of with respect to a Third Party ClaimClaim shall be considered Losses for purposes of this Agreement. Notwithstanding the foregoing, no Stockholders shall be entitled to (a) control any claim relating to intellectual property matters or for Taxes for any period after the Indemnified Party shall not admit any liability with respect toClosing Date, or (b) settle, compromise either administratively or dischargeafter the commencement of litigation, any claim for Taxes which could adversely affect the liability of the Company for Taxes for any period (or offer to settleportion thereof) after the Closing Date, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)of Acquiror.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6reasonable promptness to the Indemnifying Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall be obligated to pay the amount of such liability to the Indemnified Party on demand, which may be effected as contemplated in Sections 8.4(d) and 8.7 herein. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount (as consent to offset) promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder in respect of a Third Party Claim shall be made, subject to the provisions of this Section 8.4 and not pending a dispute with respect thereto, by prompt offset against the Indemnity Escrow (and forfeiture and cancellation of the Acquiror Common Stock offset) in an amount equal to the Losses as determined based upon the Share Value, or where the Indemnity Escrow is insufficient (including due to forfeiture of Restricted Stock as contemplated by Section 2.11) to cover indemnifiable Losses or a Third Party Claim, against Restricted Stock of the Indemnifying Party (subject to the limitations in Section 8.5(a)), as and when invoices (as to which there is no pending dispute under Section 8.4) are received by the Indemnifying Party or Losses incurred (as to which there is no pending dispute under Section 8.4) have been notified to the Indemnifying Party, subject to Section 8.4(b) and (c), and to the extent such Restricted Stock is insufficient then by claim to the Securityholders.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
(g) Any Taxes that are the responsibility of the Stockholders pursuant to Section 8.2(f) shall be paid to Acquiror or the Survivor no later than five (5) days prior to the due date for the payment of such Taxes. If not paid by such date, Acquiror may seek indemnification therefor.
(h) Pending the resolution or settlement of any dispute with respect to a claim for indemnification, to the extent of such unresolved dispute, no payment for indemnification must be made and no Common Stock that may be the subject of such pending dispute held in the Indemnity Escrow or constituting Restricted Stock on the date of notification of the indemnification claim shall be forfeited and cancelled nor shall be released to any Indemnified Party, Acquiror or any Stockholder. Such dispute shall be deemed to be resolved upon (i) the mutual agreement of Acquiror and the Stockholder Agent (in the case of Stockholder indemnification for Company matters) and the Stockholder(s) in question (in the case of Stockholder indemnification solely relating to the Stockholder Agreement), or (ii) a final, non-appealable order, decree or judgment of a court of competent jurisdiction, or if agreed by the parties to such dispute, a third party dispute resolution mechanism.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee After an indemnified party either (x) receives notice of any claim or Company Indemnitee (the “Indemnified Party”) commencement of any Action by any third party which may give rise to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party for indemnification from an indemnifying party hereunder (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought ) or (the “Indemnifying Party”y) promptly after receipt by such Indemnified Party of written notice of the has sustained any Losses not involving a Third Party Claim or Action which such indemnified party reasonably believes may give rise to a claim for indemnification from an indemnifying party hereunder, such indemnified party shall, if a claim in accordance with Section 10.6. The failure respect thereof is to provide be made against an indemnifying party under this Article VII hereof, promptly notify such noticeindemnifying party in writing of such claim, Action or Losses, as the case may be; provided, however, that failure to timely notify the indemnifying party shall not release relieve the Indemnifying Party from any indemnifying party of its obligations under this Article 10 indemnity obligation, except to the extent that indemnifying party is actually and materially prejudiced in its ability to defend the Indemnifying Party is prejudiced action by such failure. For Any such notification must be in writing and must state in reasonable detail the avoidance nature and basis of doubtthe claim, Action or Losses, and an estimate of the indemnification provisions and procedures contained in this Article 10 shall apply only Losses, to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party extent known. An indemnifying party shall have the right, upon right to assume and conduct the defense of any such Third Party Claim only if (1) the indemnifying party first provides written notice confirmation to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party indemnified party of the commencement of indemnifying party’s indemnification responsibility for all Losses resulting to such Third Party Claim, to assume (2) the defense thereof at the expense of the Indemnifying Party with counsel selected assumption by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge indemnifying party of such Third Party Claim that could not reasonably be expected to cause a material adverse effect on the Indemnifying Party may recommend and that by its terms obligates indemnified party’s business, (3) the Indemnifying Party indemnifying party shall use commercially reasonable efforts to pay diligently contest the full amount of the liability in connection with such Third Party Claim, and which releases (4) the Indemnified Party completely indemnifying party has sufficient resources, in connection with such Third Party Claimthe reasonable judgement of the indemnified party, to satisfy the amount of any adverse monetary judgement that is reasonably likely to result (the conditions set forth in clauses (1) through (4) being collectively referred to as the “Litigation Conditions”). Whether or If the indemnifying party does not the Indemnifying Party assumes assume the defense of a Third Party Claim, the Indemnified indemnified party may continue to defend the Third Party Claim, and the costs and expenses of such defense shall be additional Losses. If the indemnifying party has assumed the defense of the Third Party Claim as provided in this Section 7.5, the indemnified party shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the indemnifying party. The indemnifying party shall not admit any liability with respect tobe entitled, or settleshall lose its right to contest, defend, litigate and settle the Third Party Claim if any of the Litigation Conditions fails to be fulfilled at any time; provided that indemnified party first provided indemnifying party with ten (10) days’ written notice and an opportunity to cure such failure. Notwithstanding anything to the contrary herein, the indemnifying party shall not be entitled to assume control of such defense if (i) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (ii) the Third Party Claim seeks as a principal form of relief any form of remedy other than monetary damages; or (iii) upon petition by the indemnified party, the appropriate court rules that the indemnifying party failed or is failing to vigorously prosecute or defend such Third Party Claim. If the indemnifying party has not assumed the defense of the Third Party Claim as provided in this Section 7.5, the indemnifying party shall have the right to participate in, and to be represented by counsel (at its own expense) in any such contest, defense, litigation or settlement conducted by the indemnified party.
(b) Neither the indemnifying party nor the indemnified party, shall enter into any compromise or dischargeconsent to a settlement of, or offer to settlethe entry of any judgment arising from, compromise or discharge, any such Third Party Claim without the Indemnifying Party’s prior written consent of the other party (which consent shall not be unreasonably withheldwithheld or delayed), except that, with respect to any Third Party Claim not relating to Taxes, the indemnifying party shall be entitled to enter into a compromise or consent to the entry of a judgment and/or enter into any settlement without the consent of the indemnified party if such compromise, judgment or settlement requires only the payment of money (which payment is made in full by the indemnifying party) and fully releases the indemnified party from any liability associated with such Third Party Claim without any admission of wrongdoing.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought No failure by an indemnifying party to be collected from such Indemnified Party, the Indemnified Party acknowledge in writing its indemnification obligations under Article VII shall deliver notice relieve it of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failureobligations exist.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cross Country Healthcare Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The Party seeking indemnification under Section 11.2 (the “"Indemnified Party”") agrees to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt written notice thereof to the party against whom indemnity is sought (the “"Indemnifying Party”") promptly after receipt by such Indemnified Party of written notice of the Third assertion of any claim, or the commencement of any action or proceeding ("Claim"), in respect of which indemnity may be sought for Damages hereunder and will provide the Indemnifying Party such information with respect thereto that the Indemnifying Party may reasonably request, including in any case, copies of any summons, complaint or other pleading which may have been served and any written claim, demand, invoice, billing or other document evidencing or asserting the Claim, and a good faith estimate of the amount of the Claim in accordance with Section 10.6for indemnity. The failure to provide such notice, however, shall not release so notify the Indemnifying Party from any shall not relieve the Indemnifying Party of its obligations under this Article 10 hereunder, except to the extent that such failure shall have adversely prejudiced the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyParty.
(b) The Indemnifying Party shall have be entitled to participate in the right, upon written notice to the Indemnified Party within 30 days defense of receipt of notice from the Indemnified Party of the commencement of such any Claim asserted by any third party ("Third Party Claim") and, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory subject to the Indemnified Partylimitations set forth in this Section, shall be entitled to control and appoint lead counsel for such defense in each case at its expense. If the Indemnifying Party assumes the control of the defense, the Indemnified Party shall be entitled to employ counsel, at its expense, separate from the counsel employed by the Indemnifying Party. In any event, the parties shall cooperate in the defense or prosecution of any Third Party Claim.
(c) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 11.3, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party and (ii) the Indemnified Party shall have the right to employ separate counsel and be entitled to participate in the defense thereof, but the of such Third Party Claim and to employ separate counsel of its choice for such purpose. The fees and expenses of such separate counsel shall be at the expense of paid by the Indemnified Party. If the Indemnifying Party assumes .
(d) The Stockholders and Buyer shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party ClaimClaim and shall furnish or cause to be furnished such records, the Indemnified Party information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) The Seller's Representative and Buyer shall cooperate with the Indemnifying Party in such defense and make available to each other, their counsel and accountants all information and documents reasonably available to them which relate to any Third Party Claim subject to indemnity hereunder and to render to each other such assistance as may reasonably be required in order to ensure the Indemnifying Party all witnesses, pertinent records, materials proper and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the adequate defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, .
(f) The Seller's Representative and which releases his Deputies (collectively the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party "Representatives") shall not admit be free from any liability when acting in good faith in accordance with respect toany written advice or opinion received from legal counsel, an independent certified public accountant or settle, compromise other expert rendering advice or discharge, an opinion within the area of his or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent her expertise. The Representatives shall not be unreasonably withheld).
(c) In liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by willful misconduct or gross negligence of the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought Representatives with regard to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6their duties under this Agreement. The failure Stockholders and Buyer hereby covenant not to provide such noticesue ▇▇▇ Representatives as a result of any and all loss, howeverdamage, shall liability or expense that the Representatives may sustain or incur as a result of any action taken in good faith hereunder and not release the Indemnifying Party from any of its obligations under this Article 10 except due to the extent that Representatives' gross negligence or willful misconduct. The covenant not to sue ▇▇ this Section 11.3(f) shall survive the Indemnifying Party is prejudiced by such failuretermination of this Agreement.
Appears in 1 contract
Sources: Recapitalization Agreement (Knowles Electronics LLC)
Procedures. Any Party asserting a claim for indemnification hereunder (asuch Party seeking indemnification, the "Indemnified Party") In order for a Purchaser Indemnitee or Company Indemnitee shall notify the other Party (the “Indemnified "Indemnifying Party”") to be entitled to any indemnification provided for under this Agreement as a result (with reasonable specificity) promptly after it becomes aware of a Indemnified Liability or facts supporting a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”)action for indemnification under this Article IX, such Indemnified Party and shall deliver notice thereof provide to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by Party as soon as practicable thereafter all information and documentation reasonably necessary to support and verify any Losses associated with such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6claim or action. The failure to so notify or provide such notice, however, shall not release information to the Indemnifying Party from shall not relieve the Indemnifying Party of any of its obligations under this Article 10 liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party is demonstrates that it has been materially prejudiced by the Indemnified Party's failure to give such failurenotice, in which case the Indemnifying Party shall be relieved from its obligations hereunder to the extent of such material prejudice. For The Indemnifying Party may, and, at the avoidance request of doubtthe Indemnified Party, shall participate in and defend, contest or otherwise protect the indemnification provisions Indemnified Party against any such claim or action by counsel of the Indemnifying Party's choice at its sole cost and procedures contained in this Article 10 shall apply only to breaches of representationsexpense; provided, warranties and covenants under this Agreement and however, that the Indemnifying Party shall not apply to make any other agreement settlement or instrument entered into between Purchaser and compromise without the Company.
prior written consent of the Indemnified Party (bwhich consent shall not be unreasonably withheld, conditioned or delayed) unless the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. The Indemnifying Indemnified Party shall have the right, upon written notice to but not the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claimobligation, to assume participate at its own expense in the defense thereof at the expense by counsel of the Indemnifying Party Indemnified Party's choice and shall in any event use its reasonable best efforts to cooperate with counsel selected by and assist the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of fails timely to defend, contest or otherwise protect against such Third Party Claimsuit, action, investigation, claim or proceeding, the Indemnified Party shall have the right to employ separate counsel and do so, including, without limitation, the right to participate in the defense make any compromise or settlement thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with be entitled to recover the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by entire cost thereof from the Indemnifying Party. If , including, without limitation, reasonable attorneys' fees, disbursements and amounts paid as the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge result of such 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 Claimsuit, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether action, investigation, claim or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)proceeding.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) In order for a Any Purchaser Indemnitee or Company Seller Indemnitee claiming indemnification under this Agreement (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person asserted against the Indemnified Party by a third party (a “Third Party Claim”)) in respect of any matter that is subject to indemnification hereunder shall promptly notify in writing (such notice, such Indemnified Party shall deliver notice thereof to a “Claim Notice”) the party against whom indemnity is sought Sellers or Purchaser, as applicable, (the “Indemnifying Party” or “Indemnifying Parties”) promptly of the Third Party Claim within thirty (30) days after receipt by such Indemnified Party of written notice of the Third Party Claim, which Claim Notice shall describe in accordance with reasonable detail the nature of the Third Party Claim, including the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount of the Losses arising or in good faith estimated to arise therefrom (if available); provided, that, subject to Section 10.6. The 10.1, failure to timely provide such notice, however, Claim Notice shall not release affect the Indemnifying Party from any right of its obligations under this Article 10 the Indemnified Party’s indemnification hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement delay or instrument entered into between Purchaser and the Companyomission.
(b) The Indemnifying Party shall have the right, upon written notice right to participate in the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement defense of such Third Party ClaimClaim at any time and, subject to the limitations contained in this Section 10.3(b), assume and control the defense thereof at the expense of thereof. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume and control the defense of the Third Party Claim at any time and the Indemnifying Party acknowledges in writing that such Third Party Claim is an indemnifiable Loss under this Article X, then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party in all appropriate Proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 10.3(b). The Indemnifying Party shall have full control of such defense and reasonably satisfactory Proceedings, including any compromise or settlement thereof; provided, however, that (i) the Indemnifying Party shall not be entitled to assume or control such defense and Proceedings if such Third Party Claim seeks equitable or other non-monetary relief (including any sanction or restriction upon the conduct or operation of any business of the Indemnified Party) or if the Third Party Claim alleges conduct that would constitute criminal activity, the Third Party Claim relates to Taxes, or if the resolution of such Third Party Claim in a manner adverse to the Indemnified Party could result in Losses to the Indemnified Party in excess of the amount claimed or expected to be received from the Indemnifying Party. If , and (ii) the Indemnifying Party assumes shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent shall not be required if (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 and (ii) the settlement agreement does not contain any admission by, or sanction or restriction upon the conduct or operation of any business by, the Indemnified Party or its Affiliates, including any injunction or other equitable relief against the Indemnified Party or its Affiliates. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 10.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation unless (i) the employment of separate legal counsel has been specifically authorized in writing by the Indemnifying Party, (ii) there exists a material conflict of interest, or (iii) the Indemnifying Party fails to pursue the defense of such Third Party Claim actively and diligently, in the case of clause (ii) or (iii), whereupon the Indemnified Party shall be entitled to retain the defense of such Third Party Claim.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party has elected to defend the Indemnified Party pursuant to Section 10.3(b) within ten (10) Business Days after receipt of any Claim Notice or is not otherwise entitled to defend such Third Party Claim, then subject to Section 10.3(b) the Indemnified Party shall defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate Proceedings, which Proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and Proceedings; provided, however, that the right Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to employ separate counsel and to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in the defense thereofin, but the fees and expenses of such counsel shall be at the expense of not control, any defense or settlement controlled by the Indemnified Party. If Party pursuant to this Section 10.3(c), and the Indemnifying Party assumes shall bear its own costs and expenses with respect to such participation.
(d) If requested by the defense of any Third Party ClaimIndemnifying Party, the Indemnified Party shall agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in such defense contesting any Third Party Claim which the Indemnifying Party elects to contest, including providing access to documents, records and information. In addition, the Indemnified Party will make its personnel available at no cost to the Indemnifying Party all witnessesfor conferences, pertinent recordsdiscovery, materials and information in the Indemnified Party’s possession Proceedings, hearings, trials or under the Indemnified Party’s control relating thereto appeals as is may be reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes has assumed the defense of a Third Party Claim, the Indemnified Party shall not admit also agrees to reasonably cooperate with the Indemnifying Party and its counsel in the making of any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such related counterclaim against the Person asserting the Third Party Claim without or any cross complaint against any Person and executing powers of attorney to the Indemnifying extent necessary unless doing so would materially impair the conduct of the business conducted by the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld).
(ce) In the event A claim for indemnification for any Indemnified Party should have a claim against any Indemnifying Party hereunder that does matter not involve involving a Third Party Claim being shall be asserted against or sought by notice to be collected from such the Indemnifying Party, which notice shall describe in reasonable detail the nature of the claim, the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount of the Losses arising or in good faith estimated to arise therefrom (to the extent reasonably estimable). Subject to Section 10.1, failure to timely provide such notice shall not affect the right of the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such noticeParty’s indemnification hereunder, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is materially prejudiced by such failuredelay or omission.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person person against the Indemnified Party (a “Third Third-Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Third-Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is actually and materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The If the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party against any and all Losses that may result from a Third-Party Claim that is exclusively for civil monetary damages at law pursuant to the terms of this Agreement, the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Third-Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third-Party Claim for equitable or injunctive relief or any claim that would impose criminal liability or damages, and the Indemnified Party shall have the right to defend, at the expense of the Indemnifying Party (provided that the Indemnifying Party has acknowledged its obligation to indemnify the Indemnified Party), any such Third-Party Claim. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has failed to assume the defense thereof. If the Indemnifying Party does not expressly elect to assume the defense of such Third-Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third-Party Claim. If the Indemnifying Party assumes the defense of such Third Third-Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third-Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Third-Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third-Party Claim if such settlement, compromise or discharge judgment (i) involves a finding or admission of such Third Party Claim that wrongdoing, (ii) does not include an unconditional written release by the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount claimant or plaintiff of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely from all liability in connection with respect of such Third Third-Party Claim. Whether Claim or not the Indemnifying Party assumes the defense of a Third Party Claim, (iii) imposes equitable remedies or any obligation on the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third other than solely the payment of money damages for which the Indemnified Party Claim without the Indemnifying Party’s prior written consent (which consent shall not will be unreasonably withheld)indemnified hereunder.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of, arising out of or involving a Loss or a claim against any Indemnifying Party or demand hereunder that does not involve a Third Third-Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is materially prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or liability that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII. If the Indemnifying Party does not notify the Indemnified Party within ten days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, the Indemnifying Party shall pay such lesser amount promptly to the Indemnified Party, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The indemnification required hereunder shall be made by prompt payment by the Indemnifying Party of the amount of actual Losses in connection therewith.
(e) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(f) Notwithstanding the provisions of Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Sources: Purchase Agreement (Neulion, Inc.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result in respect of, arising out of a Indemnified Liability or involving a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to must notify the indemnifying party against whom indemnity is sought (the “Indemnifying Party”) promptly in writing (and in reasonable detail) of the Third Party Claim within fifteen (15) business days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall 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 the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall be deemed to have accepted the corresponding obligation to defend and indemnify the Indemnified Party, and in such case, the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party through counsel not employed by the Indemnifying Party in connection with the defense. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim in accordance with Section 10.6as provided above). The failure to provide such notice, however, shall not release If the Indemnifying Party from any of its obligations under this Article 10 except chooses to defend or prosecute a Third Party Claim, all the extent that indemnified parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions records and procedures contained in this Article 10 shall apply only information that are reasonably relevant to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, and making employees available on a mutually convenient basis to assume the defense thereof at the expense provide additional information and explanation of any material provided hereunder. So long as the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with counsel selected by respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party and reasonably satisfactory to the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld). If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such 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 which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or Claim and that would not the Indemnifying Party assumes the defense of a Third Party Claim, otherwise materially adversely affect the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder under Section 8.2 or Section 8.3 that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim with reasonable promptness to the Indemnifying Party and in accordance with Section 10.6any event prior to the expiration of the underlying representations and warranties, if applicable. The failure by any Indemnified Party so to provide such notice, however, notify the Indemnifying Party shall not release relieve the Indemnifying Party from any of its obligations liability that it may have to such Indemnified Party under this Article 10 Section 8.2 or Section 8.3, except to the extent that the Indemnifying Party is demonstrates that it has been prejudiced by such failure. If the Indemnifying Party disputes 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 and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee Buyer Indemnified Party or Company Indemnitee Seller Indemnified Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability Loss or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim, describing in reasonable detail (i) the facts giving rise to any claim for indemnification hereunder, (ii) the amount or method of computation of the amount of such claim, (iii) each individual item of Loss included in the amount so stated, to the extent known, (iv) the date such item was paid or properly accrued, and (v) the nature of the breach of representation, warranty, covenant or agreement with respect to which such Indemnified Party claims to be entitled to indemnification hereunder (all of the foregoing, the “Claim in accordance Information”), and shall provide any other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party; provided, that if in the reasonable opinion of counsel for the Indemnified Party, there is a conflict of interest between the Indemnified Party and the Indemnifying Party, the Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to such Indemnified Party in connection with such defense. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability Liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability Liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent consent, (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance containing the Claim Information promptly to the Indemnifying Party, and shall provide any other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 VIII except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in otherwise resolving such matters. Such assistance and cooperation shall include providing reasonable access to and copies of information, records and documents relating to such matters, furnishing employees to assist in the investigation, defense and resolution of such matters and providing legal and business assistance with respect to such matters. For the avoidance of doubt, the Indemnified Party shall not be entitled to commence any Action against the Indemnifying Party for indemnification pursuant to this Section 8.4(c) unless the notice and procedural provisions set forth herein shall have been satisfied prior thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atara Biotherapeutics, Inc.)
Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows:
(a) In order for a Purchaser Any Buyer Indemnitee or Company Seller Indemnitee claiming indemnification under this Agreement (the an “Indemnified Party”) to be entitled with respect to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person asserted against the Indemnified Party by a third party (a “Third Party Claim”)) in respect of any matter that is subject to indemnification hereunder shall promptly notify in writing (such notice, such Indemnified a “Claim Notice”) the other Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly of the Third Party Claim within thirty (30) days after receipt by such Indemnified Party of written notice of the Third Party Claim, which Claim Notice shall describe in accordance with reasonable detail the nature of the Third Party Claim, including the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount of the Damages arising or estimated to arise therefrom (if available); provided that subject to Section 10.6. The 9.01, failure to timely provide such notice, however, Claim Notice shall not release affect the Indemnifying Party from any right of its obligations under this Article 10 the Indemnified Party’s indemnification hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement delay or instrument entered into between Purchaser and the Companyomission.
(b) The Indemnifying Party shall have the right, upon written notice right to participate in the Indemnified Party within 30 days of receipt of notice from the Indemnified Party of the commencement defense of such Third Party ClaimClaim at any time and, subject to the limitations contained in this Section 9.03(b), assume and control the defense thereof at the expense of thereof. If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party elects to assume and control the defense of the Third Party Claim at any time and the Indemnifying Party acknowledges in writing that such Third Party Claim is an indemnifiable Damage under this Article IX), then the Indemnifying Party shall have the right to defend such Third Party Claim with counsel selected by the Indemnifying Party in all appropriate proceedings, to a final conclusion or settlement at the discretion of the Indemnifying Party in accordance with this Section 9.03(b). The Indemnifying Party shall have full control of such defense and reasonably satisfactory proceedings, including any compromise or settlement thereof; provided, however, that (i) the Indemnifying Party shall not be entitled to assume or control such defense and proceedings if such Third Party Claim seeks equitable or other non-monetary relief (including any sanction or restriction upon the conduct or operation of any business of the Indemnified Party) or if the Third Party Claim alleges conduct that would constitute criminal activity or if the resolution of such Third Party Claim in a manner adverse to the Indemnified Party. If Party could result in Damages to the Indemnified Party in excess of the amount claimed or expected to be received from the Indemnifying Party assumes (other than as a result of the Buyer Deductible or the Seller Deductible or any per claim basket), and (ii) the Indemnifying Party shall not enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, such consent shall not be required if (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 and (ii) the settlement agreement does not contain any admission by, or sanction or restriction upon the conduct or operation of any business by, the Indemnified Party or its Affiliates, including any injunction or other equitable relief against the Indemnified Party or its Affiliates). The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this Section 9.03(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation unless (i) the employment of separate legal counsel has been specifically authorized in writing by the Indemnifying Party, (ii) there exists a material conflict of interest, or (iii) the Indemnifying Party fails to pursue the defense of such Third Party Claim actively and diligently, in the cause of clause (ii) or (iii), whereupon the Indemnified Party shall be entitled to retain the defense of such Third Party Claim.
(c) If the Indemnifying Party does not notify the Indemnified Party that the Indemnifying Party has elected to defend the Indemnified Party pursuant to Section 9.03(b) within ten (10) Business Days after receipt of any Claim Notice or is not otherwise entitled to defend such Third Party Claim, then subject to Section 9.03(b) the Indemnified Party shall defend, and be reimbursed for its reasonable cost and expense (but only if the Indemnified Party is actually entitled to indemnification hereunder) in regard to the Third Party Claim with counsel selected by the Indemnified Party, in all appropriate proceedings, which proceedings shall be prosecuted diligently by the Indemnified Party. In such circumstances, the Indemnified Party shall defend any such Third Party Claim in good faith and have full control of such defense and proceedings; provided, however, that the right Indemnified Party may not enter into any compromise or settlement of such Third Party Claim if indemnification is to employ separate counsel and to be sought hereunder, without the Indemnifying Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed). The Indemnifying Party may participate in the defense thereofin, but the fees and expenses of such counsel shall be at the expense of not control, any defense or settlement controlled by the Indemnified Party. If Party pursuant to this Section 9.03(c), and the Indemnifying Party assumes shall bear its own costs and expenses with respect to such participation.
(d) If requested by the defense of any Third Party ClaimIndemnifying Party, the Indemnified Party shall agrees, at the sole cost and expense of the Indemnifying Party, to reasonably cooperate with the Indemnifying Party and its counsel in such defense contesting any Third Party Claim which the Indemnifying Party elects to contest, including providing access to documents, records and information. In addition, the Indemnified Party will make its personnel available at no cost to the Indemnifying Party all witnessesfor conferences, pertinent recordsdiscovery, materials and information in the Indemnified Party’s possession proceedings, hearings, trials or under the Indemnified Party’s control relating thereto appeals as is may be reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes has assumed the defense of a Third Party Claim, the Indemnified Party shall not admit also agrees to reasonably cooperate with the Indemnifying Party and its counsel in the making of any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such related counterclaim against the Person asserting the Third Party Claim without or any cross complaint against any Person and executing powers of attorney to the Indemnifying extent necessary unless doing so would materially impair the conduct of the business conducted by the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld).
(ce) In the event A claim for indemnification for any Indemnified Party should have a claim against any Indemnifying Party hereunder that does matter not involve involving a Third Party Claim being shall be asserted against or sought by notice to be collected from such the Indemnifying Party, which notice shall describe in reasonable detail the nature of the claim, the basis of the Indemnified Party’s request for indemnification under this Agreement and the amount of the Damages estimated to arise therefrom (to the extent reasonably estimable). Subject to Section 9.01, failure to timely provide such notice shall not affect the right of the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such noticeParty’s indemnification hereunder, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is materially prejudiced by such failuredelay or omission.
(f) With respect to any claim that any Buyer Indemnitee may assert for indemnification with respect to any Damages incurred for any environmental investigation, monitoring, remediation, or other response or removal action (“Environmental Response”) relating to the Business Real Property, Seller shall have no indemnification obligations under this Agreement for any Environmental Response to the extent such Damages result from any intrusive subsurface investigation by any Buyer Indemnitee, except for such investigation that is (i) required by Environmental Laws, a Permit or a Governmental Authority, (ii) conducted to investigate conditions that suggest an imminent and significant threat to human health or the environment, (iii) conducted for the purposes of bona fide construction or expansion of a building or other facility improvement or repair, or (iv) expressly or affirmatively required at any Leased Real Property pursuant to any Lease or by any prospective buyer in connection with the bona fide sale of such Leased Real Property.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee A Party seeking indemnification (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as a result in respect of a Indemnified Liability Loss arising out of or involving a claim or demand made by any Person against the Indemnified Party by any Person not a party to this Agreement (a “Third Party Claim”), such Indemnified Party ) shall deliver notice (a “Claim Notice”) in respect thereof to the party Party against whom indemnity is sought (the “Indemnifying Party”) promptly with reasonable promptness after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 ARTICLE VIII except to the extent that the Indemnifying Party is actually prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) The Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 15 days of receipt of notice a Claim Notice from the Indemnified Party of the commencement in respect of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party (which expenses shall not be applied against any indemnity limitation herein) with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not expressly elect to assume the defense of such Third Party Claim within the time period and otherwise in accordance with the first sentence of this Section 8.4(b), the Indemnified Party shall have the sole right to assume the defense of and to settle such Third Party Claim. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (i) the employment of such counsel shall have been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to the Third Party Claim (including any impleaded parties) include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party reasonably determines that representation by counsel to the Indemnifying Party of both the Indemnifying Party and such Indemnified Party may present such counsel with a conflict of interest. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall shall, at the Indemnifying Party’s expense, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required requested by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Indemnifying Party shall agree not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise or consent to the entry of any judgment with respect to such Third Party Claim if such settlement, compromise or discharge judgment (A) involves a finding or admission of criminal liability, (B) does not include an unconditional written release by the claimant or plaintiff of the Indemnified Party from all Liability in respect of such 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 which releases or (C) imposes equitable remedies or any obligation on the Indemnified Party completely in connection with such Third Party Claim. Whether or not other than solely the Indemnifying Party assumes the defense payment of a Third Party Claim, money damages for which the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer will be indemnified hereunder subject to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)Section 8.5 below.
(c) In the event any An Indemnified Party should have seeking indemnification in respect of a claim against any Indemnifying Party hereunder Loss that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party (a “Direct Claim”) shall deliver notice a Claim Notice in respect thereof to the Indemnifying Party with reasonable promptness after becoming aware of facts supporting such claim in accordance Direct Claim, and shall provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure to provide such noticedeliver a Claim Notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 ARTICLE VIII except to the extent that the Indemnifying Party is actually prejudiced by such failurefailure and shall not relieve the Indemnifying Party from any other obligation or Liability that it may have to the Indemnified Party pursuant to this ARTICLE VIII. If the Indemnifying Party does not notify the Indemnified Party within 30 days following its receipt of a Claim Notice in respect of a Direct Claim that the Indemnifying Party disputes its liability to the Indemnified Party hereunder, such Direct Claim specified by the Indemnified Party in such Claim Notice shall be conclusively deemed a Liability of the Indemnifying Party hereunder and the Indemnifying Party shall pay the amount of such Liability to the Indemnified Party on demand. If the Indemnifying Party agrees that it has an indemnification obligation but asserts that it is obligated to pay a lesser amount than that claimed by the Indemnified Party, such lesser amount shall be deemed a Final Loss Amount payable in accordance with Section 8.6 below, without prejudice to or waiver of the Indemnified Party’s claim for the difference.
(d) The Indemnifying Party shall not be entitled to require that any action be made or brought against any other Person before action is brought or claim is made against it hereunder by the Indemnified Party.
(e) Notwithstanding the provisions of Section 10.9, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party with respect to such claim anywhere.
Appears in 1 contract
Sources: Asset Purchase Agreement (MOVING iMAGE TECHNOLOGIES INC.)
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee The party seeking indemnification under Section 15.2 (the “"Indemnified Party”") to be entitled to any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver give prompt notice thereof in reasonable detail to the party against whom indemnity is sought (the “"Indemnifying Party”") promptly after receipt by such Indemnified Party of written notice of the assertion of its claim for indemnity, including the commencement of any action or proceeding by any third party in respect of which indemnity may be sought under such Section ("Third Party Claim in accordance Claim"), and will provide the Indemnifying Party with Section 10.6such information with respect thereto as the Indemnifying Party may reasonably request. The failure of the Indemnified Party to provide such notice, however, shall not release so notify the Indemnifying Party from any shall not relieve the Indemnifying Party of its obligations under this Article 10 hereunder, except to the extent that such failure shall have adversely prejudiced the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyParty.
(b) The Indemnifying Party shall have will promptly notify the right, upon written notice Indemnified Party whether the Indemnifying Party disputes its liability to the Indemnified Party within 30 days of receipt of with respect to the claim described in a notice from delivered pursuant to this Section 15.3 and, if not, whether the Indemnifying Party desires, at its sole cost and expense, to defend the Indemnified Party against a Third Party Claim described therein.
(c) If the Indemnifying Party notifies the Indemnified Party that the Indemnifying Party desires to defend the Indemnified Party with respect to a Third Party Claim pursuant to this Section 15.3, then the Indemnifying Party shall be entitled to assume the control of the commencement defense or settlement of such Third Party ClaimClaim in accordance with the provisions of this Section 15.3, to assume and if requested by the defense thereof Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, cooperate with the Indemnifying Party and its counsel in defending or settling the Third Party Claim the defense or settlement of which the Indemnifying Party elects to control (including by furnishing or causing to be furnished such records, information and testimony, and attending such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith, and, if appropriate and related to the Third Party Claim in question, in making any counterclaim against the Person asserting the Third Party Claim, or any cross-claim against any Person; provided, however, that the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which, except for claims related to Taxes, shall not be unreasonably withheld or delayed) before entering into any settlement of such Third Party Claim if the settlement does not provide for full indemnity of and/or release the Indemnified Party from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or any of its Affiliates. The Indemnified Party may retain separate counsel selected of its choice to represent it in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying Party and reasonably satisfactory pursuant to the Indemnified Partythis Section 15.3. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the The fees and expenses of such separate counsel shall be paid by the Indemnified Party.
(d) If the Indemnifying Party has notified the Indemnified Party that the Indemnifying Party disputes 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, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party's defense pursuant to this Section 15.3 or of the Indemnifying Party's participation therein at the expense Indemnified Party's request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation to the extent such dispute is resolved in favor of the Indemnified Party. If The Indemnifying Party may retain separate counsel to represent it in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 15.3, and the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense will bear its own costs and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability expenses with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)participation.
(ce) In the event any Indemnified Party should have assert a claim for indemnity under Section 15.2 against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, if the Indemnifying Party notifies the Indemnified Party shall deliver pursuant to paragraph (b) above that it does not dispute the claim for indemnity described in such notice or fails to dispute such claim, the Damages arising from the claim specified in such notice will be conclusively deemed a liability of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any under Section 15.2 and the Indemnifying Party shall pay the amount of its obligations under this Article 10 except such Damages to the Indemnified Party on demand after the final determination thereof, but only to the extent that the Indemnifying Party it is prejudiced by such failureliable therefor under Section 15.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee If any Person who or Company Indemnitee which is entitled to seek indemnification under Section 10.2 (the an “Indemnified Party”) to be entitled to receives notice of the assertion or commencement of any indemnification provided for under this Agreement as a result of a Indemnified Liability or a claim or demand made by any Person Third-Party Claim against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof with respect to which the party Person against whom indemnity or which such indemnification is being sought (the an “Indemnifying Party”) promptly is obligated to provide indemnification under this Agreement, the Indemnified Party will give such Indemnifying Party reasonably prompt written notice thereof, but in any event not later than ten (10) days after receipt by of such Indemnified Party of written notice of such Third-Party Claim. Such notice by the Third Indemnified Party will describe the Third-Party Claim in accordance with Section 10.6reasonable detail, will include copies of all available material, written evidence thereof and will indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except will have the right to participate in, or, by giving written notice to the extent that Indemnified Party, to assume, the defense of any Third-Party Claim at such Indemnifying Party is prejudiced Party’s own expense and by such failure. For Indemnifying Party’s own counsel (reasonably satisfactory to the avoidance of doubtIndemnified Party), the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanyIndemnified Party will cooperate in good faith in such defense.
(b) The If, within ten (10) days after giving notice of a Third-Party Claim to an Indemnifying Party pursuant to Section 10.3(a), an Indemnified Party receives written notice from the Indemnifying Party that the Indemnifying Party has elected to assume the defense of such Third-Party Claim as provided in the last sentence of Section 10.3(a), the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that if the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten (10) days after receiving written notice from the Indemnified Party that the Indemnified Party reasonably believes the Indemnifying Party has failed to take such steps or if the Indemnifying Party has not undertaken fully to indemnify the Indemnified Party in respect of all Damages relating to the matter, the Indemnified Party may assume its own defense and the Indemnifying Party will be liable for all reasonable costs and expenses paid or incurred in connection therewith. Without the prior written consent of the Indemnified Party, which consent shall have not be unreasonably withheld or delayed, the rightIndemnifying Party will not enter into any settlement of any Third-Party Claim which would lead to liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder, upon or which provides for injunctive or other non-monetary relief applicable to the Indemnified Party, or does not include an unconditional release of all Indemnified Parties. If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party will give written notice to the Indemnified Party within 30 days of receipt of notice from to that effect. If the Indemnified Party of the commencement fails to consent to such firm offer within five (5) days after its receipt of such Third notice, the Indemnified Party Claimmay continue to contest or defend such Third-Party Claim and, to assume in such event, the defense thereof at the expense maximum liability of the Indemnifying Party with counsel selected by to the Indemnified Party as to such Third-Party Claim will not exceed the amount of such settlement offer. The Indemnified Party will provide the Indemnifying Party with reasonable access during normal business hours to books, records and employees (if still in their employ) of the Indemnified Party necessary in connection with the Indemnifying Party’s defense of any Third-Party Claim which is the subject of a claim for indemnification by an Indemnified Party hereunder.
(c) Any claim by an Indemnified Party on account of Damages which does not result from a Third-Party Claim (a “Direct Claim”) will be asserted by giving the Indemnifying Party reasonably satisfactory to prompt written notice thereof, but in any event not later than ten (10) days after the Indemnified Party becomes aware of such Direct Claim. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail, will include copies of all available material, written evidence thereof and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of thirty (30) days after receipt thereof within which to respond in writing to such Direct Claim. If the Indemnifying Party assumes does not respond in writing within the defense of such Third Party Claimthirty (30) day period, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in will be deemed to have rejected such defense Direct Claim and make will be free to pursue remedies available to the Indemnifying Party all witnesses, pertinent records, materials on the terms and information in subject to the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense provisions of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)this Agreement.
(cd) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The A failure to provide such noticegive timely notice or to include any specified information in any notice as provided in Section 10.3(a), however10.3(b) or 10.3(c) will not affect the rights or obligations of any party hereunder, shall not release the Indemnifying Party from any of its obligations under this Article 10 except and only to the extent that the Indemnifying Party is that, as a result of such failure, any party which was entitled to receive such notice was deprived of its right to recover any payment under its applicable insurance coverage or was otherwise materially prejudiced by as a result of such failure.
Appears in 1 contract
Procedures. (a) 11.4.1 In order for a Purchaser Indemnitee Indemnified Party or Company Indemnitee a Seller Indemnified Party (the “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement as in respect of, arising out of or involving a result of a Indemnified Liability Loss or a claim or demand made by any Person other than Seller and its Affiliates or Purchaser and its Affiliates, as the case may be, against the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim, but in no event later than the Claims Deadline, 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 claim (if known) and such other information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that (x) the Claims Deadline shall not be applicable for any Third Party Claims subject to the indemnification provided in Sections 11.2.2 and 11.3.2, and (y) the Claims Deadline shall be tolled with respect to any Third-Party Claim made prior to the Claims Deadline. The failure to provide the information set forth in accordance with Section 10.6the preceding sentence as part of the initial written notice of claim shall not invalidate the effectiveness of the written notice provided the information is delivered in a reasonable time period thereafter. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 XI except to the extent that the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the Company.
(b) 11.4.2 The Indemnified Party shall have the right to defend the Third Party Claim at the expense of the Indemnifying Party; provided, however, that the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within 30 thirty (30) days of receipt of notice from the Indemnified Party of the commencement of such Third Party Claim, to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory acceptable to the Indemnified Party. If Notwithstanding the Indemnifying Party assumes Party’s election to assume the defense of such the Third Party Claim, the Indemnified Party shall have may, upon written notice to the right Indemnifying Party, elect to employ its own counsel (who shall be reasonably acceptable to the Indemnifying Party) at the Indemnifying Party’s expense (except that the Indemnifying Party shall not be obligated to pay the fees of more than one separate counsel for all Indemnified Parties, taken together) if (A) the Indemnifying Party is also a Person against whom the Third Party Claim is made and the Indemnified Party has been advised by counsel that (x) representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct or (y) the Indemnified Party has available to participate it one or more defenses or counterclaims that are inconsistent with, different from, or in addition to one or more of those that may be available to the Indemnifying Party with respect to such Third Party Claim; or (B) the Indemnifying Party shall not in fact have employed counsel reasonably satisfactory to the Indemnified Party for the defense thereof, but the fees and expenses or settlement of such counsel shall be at Third Party Claim; provided, however, that the expense assumption of control of the defense or settlement of a Third Party Claim by the Indemnified PartyParty pursuant to this item sentence shall not relieve the Indemnifying Party of its obligation to indemnify and hold the Indemnified Party harmless. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, and which releases the Indemnified Party completely in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settlecompromise, compromise settle or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent unless the Indemnifying Party withdraws from the defense of such Third Party Claim. If the Indemnifying Party does not assume the defense of any such claims or proceeding pursuant to this Section 11.4 and the Indemnified Party proposes to settle such claims or proceeding prior to a final judgment thereon or to forgo any appeal with respect thereto, then the Indemnified Party shall give the Indemnifying Party prompt written notice thereof and the Indemnifying Party shall have the right to participate in the settlement or assume or reassume the defense of such claims or proceeding. The Indemnifying Party and its counsel shall keep the Indemnified Party fully advised as to its conduct of such defense or settlement, and shall not compromise or settle such Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld)withheld or delayed) unless such settlement or compromise does not subject the Indemnified Party to any monetary liability, includes a complete, unconditional release of the Indemnified Party from all liability with respect to such Third Party Claim, and does not constitute an acknowledgement or acceptance by the Indemnified Party of fault, culpability, or responsibility of any kind.
(c) 11.4.3 In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified PartyClaim, the Indemnified Party shall deliver notice of such claim to the Indemnifying Party no later than the Claims Deadline, describing in accordance 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) and such other information with Section 10.6respect thereto as the Indemnifying Party may reasonably request; provided, however, that the Claims Deadline shall not be applicable for any claims subject to the indemnification provided in Sections 11.2.2 and 11.3.2. The failure to provide the information set forth in the preceding sentence as part of the initial written notice of claim shall not invalidate the effectiveness of the written notice provided the information is provided in a reasonable time period thereafter. The failure to provide such notice, however, notice shall not release the Indemnifying Party from any of its obligations under this Article 10 XI except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnifying Party shall have thirty (30) days after receipt of notice of any claim pursuant to this Section to (i) agree to the amount or method of determination set forth in such claim and to pay such amount to such Indemnified Party, or (ii) provide the Indemnified Party with notice (a “Dispute Notice”) that it disagrees with the amount or method of determination set forth in such claim. If the Indemnifying Party has timely delivered a Dispute Notice, the Indemnifying Party and the Indemnified Party shall, during a period thirty (30) days from the Indemnified Party’s receipt of such Dispute Notice, negotiate to achieve resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved as otherwise provided in this Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Marriott International Inc /Md/)
Procedures. (a) In order for A Purchaser Indemnified Party or a Purchaser Indemnitee or Company Indemnitee (the “Seller Indemnified Party”) , as the case may be (for purposes of this Section 10.4, an "INDEMNIFIED PARTY"), shall give the indemnifying party under Sections 9.10, 9.11, 10.2 or 10.3, as applicable (for purposes of this Section 10.4, an "INDEMNIFYING PARTY"), prompt written notice of any matter which it has in good faith determined has given rise to be entitled to any a right of indemnification provided for under this Agreement as (the "INDEMNITY NOTICE"), stating the amount of the Loss, if known, and method of computation thereof, if practicable, and containing a result reference to the provisions of a Indemnified Liability this Agreement in respect of which such right of indemnification is claimed or a claim or demand made by any Person against arises; provided that the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The 's failure to provide such notice, however, timely notice as provided herein shall not release reduce the indemnification obligations of the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced materially harmed by such failurefailure to provide notice. For If an Indemnifying Party notifies an Indemnified Party within the avoidance Dispute Period that it disputes its liability with respect to the claim described in the Indemnity Notice, an Indemnifying Party and an Indemnified Party shall proceed in good faith to negotiate a resolution of doubtsuch dispute, and if not resolved through negotiations within the indemnification Resolution Period, such dispute shall be resolved in accordance with the provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to any other agreement or instrument entered into between Purchaser and the CompanySection 12.3.
(b) An Indemnified Party shall also give prompt written notice of any pending claim or demand by a third party (the "THIRD PARTY CLAIM NOTICE") to the Indemnifying Party that the Indemnified Party has in good faith determined will likely give rise to a right of indemnification under this Agreement (a "THIRD PARTY CLAIM"), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand. If an Indemnified Party fails to provide the Third Party Claim Notice with reasonable promptness after an Indemnified Party receives notice of such Third Party Claim, an Indemnifying Party shall still be obligated to indemnify an Indemnified Party with respect to such Third Party Claim, except to the extent that an Indemnifying Party's ability to defend the relevant claim has been materially prejudiced by such failure of an Indemnified Party. The Indemnifying Party shall have the right, upon written notice at its sole option and expense, to the Indemnified Party within 30 days be represented by counsel of receipt of notice from the Indemnified Party of the commencement of such its choice and to defend against, negotiate, settle or otherwise deal with any Third Party Claim, Claim which relates to assume the defense thereof at the expense of the Indemnifying Party with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Partyany Losses indemnified against hereunder. If the Indemnifying Party assumes the defense of such elects to defend against, negotiate, settle or otherwise deal with any Third Party ClaimClaim which relates to any Losses indemnified against hereunder, it shall within the Dispute Period, or if there is a dispute, then within the Resolution Period, notify the Indemnified Party shall have the right of its intent to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Partydo so. If the Indemnifying Party assumes elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Losses indemnified against hereunder, the Indemnified Party may defend against, negotiate, settle or otherwise deal with such Third Party Claim. If the Indemnifying Party shall assume the defense of any Third Party Claim, the Indemnified Party may participate in, at his or its own expense, but not control, the defense of such Third Party Claim; PROVIDED, HOWEVER, that such Indemnified Party shall cooperate be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party in such defense and make available to if (i) so requested by the Indemnifying Party all witnesses, pertinent records, materials and information to participate or (ii) in the reasonable opinion of counsel to the Indemnified Party’s possession , a conflict or under potential conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation advisable; PROVIDED, FURTHER, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third Party Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding anything in this Section 10.4 to the contrary, neither the Indemnifying Party nor the Indemnified Party shall, without the written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned, settle or compromise any Third Party Claim or permit a default judgment or consent to entry of any judgment unless the claimant and such party provide to such other party an unqualified release from all liability in respect of the Third Party Claim. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party’s control relating thereto as is reasonably required 's willingness to accept the settlement offer and, subject to the applicable limitations of Sections 9.10, 9.11, 10.2 and 10.3, pay the amount called for by such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may, at its own expense, continue to contest such Third Party Claim, free of any participation by the Indemnifying Party. If , and the Indemnifying Party assumes the defense amount of any Third Party Claim, the Indemnified Party shall agree ultimate liability with respect to any settlement, compromise or discharge of such Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party has an obligation to pay hereunder shall, subject to the full Indemnification Cap and other limits set forth in Sections 9.10, 9.11, 10.2 and 10.3, be limited to the lesser of (A) the amount of the liability in connection settlement offer that the Indemnified Party declined to accept or (B) the aggregate Losses of the Indemnified Party with respect to such Third Party Claim, and which releases the Indemnified Party completely subject, in connection with such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claimeach case, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld).
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failurelimitations set forth in Sections 9.10, 9.11, 10.2 and 10.
Appears in 1 contract
Procedures. (a) In order for a Purchaser Indemnitee or Company Indemnitee (For purposes of this Section 6.3, the party entitled to indemnification shall be known as the “Indemnified Party”) ” and the party required to indemnify shall be entitled known as the “Indemnifying Party.” In the event that the Indemnifying Party shall be obligated to any indemnification provided for under the Indemnified Party pursuant to this Agreement Article VI or in the event that a suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party under this Article VI, the Indemnified Party shall give prompt written notice to the Indemnifying Party of the occurrence of such event and the amount or the estimated amount thereof to the extent then feasible (which estimate shall not be conclusive) (the “Claim Notice”). The failure of the Indemnified Party to provide the Indemnifying Party with timely notice will limit the indemnification provided for in this Article VI, only if, and to the extent that, the Indemnifying Party incurs any out-of-pocket expense or otherwise has been materially prejudiced as a Indemnified Liability direct result of such delay. The Indemnifying Party shall have 20 days from the delivery or a claim or demand made by any Person against receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (a) whether or not the Indemnifying Party disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand and (b) if the claim is from a “Third third party, whether or not it desires to defend the Indemnified Party Claim”)against such claim or demand. In the event the Indemnifying Party agrees to defend, contest or otherwise protect against any such suit, action, investigation, claim or proceeding, the Indemnifying Party will do so at its own cost and expense, and the Indemnified Party shall have the right but not the obligation to participate at its own expense in the defense thereof by counsel of its own choice. The Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party shall deliver notice thereof relating to such claim or demand. In addition, the party against whom indemnity is sought (the “Indemnifying Party”) promptly after receipt by such Indemnified Party of written notice of the Third Party Claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release and the Indemnifying Party from shall render to each other such assistance as may reasonably be requested in order to ensure the proper and adequate defense of any such claim or demand. The party in charge of its obligations under this Article 10 except the defense shall keep the other party fully apprised at all times as to the extent that status of the Indemnifying Party is prejudiced by such failure. For the avoidance of doubt, the indemnification provisions and procedures contained in this Article 10 shall apply only to breaches of representations, warranties and covenants under this Agreement and shall not apply to defense or any other agreement or instrument entered into between Purchaser and the Companysettlement negotiations with respect thereto.
(b) The In the event that the Indemnifying Party shall does not so elect to defend such claim or does not respond to the Claim Notice during the Notice Period, the Indemnified Party will have the right, right (upon written further notice to the Indemnified Party within 30 days Indemnifying Party) to undertake the defense, compromise or settlement of receipt of notice from such claim for the Indemnified Party account of the commencement Indemnifying Party, subject to the right of such Third the Indemnifying Party Claim, to assume the defense thereof of such claim pursuant to the terms of paragraph (a) of this Section 6.3 at the expense of any time prior to settlement, compromise or final determination thereof, provided that the Indemnifying Party reimburses in full all costs of the Indemnified Party (including reasonable attorney’s fees) incurred by it in connection with counsel selected by such defense prior to such assumption.
(c) Anything in this Section 6.3 to the Indemnifying contrary notwithstanding, if the Indemnified Party and reasonably satisfactory to believes there is a reasonable probability that a claim may have a material adverse effect upon the Indemnified Party. If the Indemnifying Party assumes the defense of such Third Party Claim, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. If the Indemnifying Party assumes the defense of any Third Party Claim, the Indemnified Party shall agree to any settlementdefense, compromise or discharge settlement of such Third Party Claim claim, provided that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount shall not be liable for expenses of the liability in connection with such Third Party Claim, and which releases separate counsel of the Indemnified Party completely in connection with engaged for such Third Party Claim. Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, or offer to settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld)purpose.
(c) In the event any Indemnified Party should have a claim against any Indemnifying Party hereunder that does not involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party, the Indemnified Party shall deliver notice of such claim in accordance with Section 10.6. The failure to provide such notice, however, shall not release the Indemnifying Party from any of its obligations under this Article 10 except to the extent that the Indemnifying Party is prejudiced by such failure.
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